Abortion (Northern Ireland) (No. 2) Regulations 2020
19:30 - Division conducted remotely on Baroness O’Loan’s amendment - Ayes: 112 / Noes: 388 - Baroness O’Loan’s amendment disagreed.
19:48 - Division conducted remotely on Viscount Younger of Leckie’s Motion - Ayes: 355 / Noes: 77 - Motion agreed.
Viscount Younger of Leckie
That the Regulations laid before the House on 13 May be approved.
Special attention drawn to the instrument by the Secondary Legislation Scrutiny Committee, 16th Report.
Viscount Younger of Leckie (Con)
My Lords, noble Lords may be aware that these represent the second version of the regulations. Given the unprecedented changes created by Covid-19, we had no choice but to remake them and give Parliament an additional 28 days to consider them. I am pleased that we can now debate the regulations today. In particular, I look forward to the remarks of the noble Baroness, Lady O’Loan, and my noble friend Lord Shinkwin, who will speak to their amendments.
The regulations provide the new legal framework for access to abortion services in Northern Ireland and ensure ongoing legal certainty from service provision starting with effect from 31 March 2020. As many noble Lords will be aware, prior to these changes, starting with decriminalisation in October 2019, abortion in Northern Ireland was accessible only where a woman’s life was at risk, or the pregnancy would adversely affect her physical or mental health in a manner that was “real and serious” and “permanent or long term”. This meant that women and girls were forced to travel to England to access services—1,014 in 2019 alone—or look to unsafe alternatives outside the healthcare system, thus potentially putting themselves at risk, and feeling scared to receive proper aftercare health treatment given the criminality. I can only start to imagine the distress that this has caused.
I recognise that this is an emotive issue and that views on all sides of the debate are strongly held. I am sure that this afternoon will be no exception. These are extremely difficult and often distressing decisions for women and girls and, where involved, partners and families. However, the essence of these regulations is to provide women and girls with the opportunity to be able to make individual informed decisions based on their own health and wider circumstances. As a result of the absence of the Assembly and a functioning Executive, Parliament placed this duty on the Government to act to protect the human rights of women and girls.
The Government have to provide lawful access to abortion services in Northern Ireland in a way that implements the recommendations of the CEDAW report on Northern Ireland, the underlying important premise of which is to ensure that abortions are delivered as part of safe sexual and reproductive healthcare services. Parliament voted through Section 9 of the NIEF Act with a two-thirds majority in support of decriminalisation of access to abortions, except for late-term abortions where the offence of destroying a child capable of being born alive would still apply.
The regulations set out the specific parameters within which abortions could legally take place. They first properly protect and promote the health and safety of women and girls and, secondly, provide clarity and certainty for the medical profession. We consulted on this: there was a six-week period, including briefings with the Northern Ireland parties and engagement with a range of representative groups and individuals with lived experience, followed by careful analysis of the submissions received. I acknowledge that there was a vote in the Northern Ireland Assembly on 2 June, but it was on one issue—severe foetal impairment—and was not a motion to vote down these regulations. As abortion remains a devolved issue, the Assembly is now able to legislate, or indeed amend the regulations, should it so wish, but only if it can agree a way forward that remains CEDAW and convention-compliant.
I will now give a brief overview of the key elements of the regulations. They provide for access to abortions without conditionality up to 12 weeks’ gestation. This ensures a system that avoids any further trauma or a barrier to access for victims of sexual crime, as required by CEDAW. This provision is necessarily different from the law in the rest of the UK, given the decision by Parliament to decriminalise abortion in Northern Ireland, which creates a different starting point for the statutory framework. These different parameters do not result in unintended consequences, such as allowing sex-selective abortions, as some have suggested. The regulations also set out a further three circumstances in which an abortion is possible.
The first is: up to 24 weeks’ gestation in cases where continuance of the pregnancy would involve risk of injury to the physical or mental health of the pregnant woman or girl, greater than the risk of terminating the pregnancy. The second is in cases of severe foetal impairment and fatal foetal abnormalities, with no gestational time limit. This is where there is a substantial risk that the condition of the foetus is such that the death of the foetus is likely before, during or shortly after birth; or, if the child were born, it would suffer from such physical or mental impairment as to be seriously disabled. We recognise these are very distressing circumstances, usually arising in cases of wanted pregnancies, and appropriate support and provision of information are key so that women can make informed decisions, based on what is right for their health and wider circumstances, including if they want to carry the pregnancy to term and have proper support going forward. The third is in cases where there is a risk to the life of the woman or girl, greater than if the pregnancy were terminated, or where necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman or girl, with no gestational time limit. In such cases, the regulations require that two medical professionals certify in good faith that the ground for the abortion has been met. While CEDAW’s report is silent on the question of gestational limit in such circumstances, we consider the aforementioned grounds an appropriate way of delivering on our statutory duty and implementing the recommendations of the CEDAW report in a way that will work effectively in practice.
The regulations allow for abortions to be provided by a doctor, nurse or midwife. They may be carried out in general practitioners’ premises, clinics provided by a health and social care trust, and health and social care trust hospitals, operating under the overall Northern Ireland health and social care framework. The Department of Health in Northern Ireland has a power to approve other places. Medical professionals are required to notify the Northern Ireland CMO of the abortion, alongside other relevant data specified in the regulations, with subsequent annual publication of data.
Finally, the regulations impose a criminal sanction on anyone who intentionally terminates or procures the termination of the pregnancy of a woman otherwise than in accordance with the clear requirements and conditions set out in the regulations, including the certification and notification requirements. This is about where someone is acting dishonestly or negligently—not where a medical professional forms an opinion as to risk in good faith and certifies that an abortion can take place but makes a factual error—and requires the consent of the DPP before proceedings can be brought under the regulations. Other criminal laws also continue to apply, including Section 25 of the Criminal Justice Act 1945, which prohibits the destruction of a child otherwise capable of being born alive, but abortions provided in accordance with the grounds of the regulations are exempt from this and no woman or girl can be prosecuted with respect to ending her own pregnancy.
I know that many noble Lords have expressed concerns that this has resulted in a more liberal regime than Great Britain’s, but this is not the case. The regulations deliver equivalent outcomes in practice and access to services to those in the rest of the UK while still implementing what CEDAW requires. The Government stand ready to provide whatever support and guidance we can to the Northern Ireland Minister for Health and his department to assist with setting up abortion services in line with these regulations.
I look forward to the debate and will seek to address as many questions as I can in closing. I hope that the regulations will be supported. I beg to move.
Baroness O’Loan
Leave out from “that” to the end, and insert “this House declines to approve the Regulations because they (1) have been rejected by the Northern Ireland Assembly, (2) are legally flawed by being in breach of section 6 of the Northern Ireland Act 1998, (3) do not prohibit abortion on the grounds of non-fatal disability, (4) perpetuate stereotypes towards persons with disabilities, including Down’s syndrome, and (5) do not prohibit abortion on the grounds of sex selection during the first twelve weeks of gestation, as is the case in Great Britain, and therefore perpetuate negative stereotypes and prejudices towards women.”
Baroness O’Loan (CB)
My Lords, these regulations apply only in Northern Ireland; we now have a functioning Northern Ireland Assembly. Abortion is a devolved matter; the Assembly voted to reject these regulations on 2 June. The wording of the Motion was to “reject” these regulations. Of our 90 MLAs, 75 voted against the provisions for grounds of disability. When the NIO carried out its short consultation, 79% of respondents rejected these proposals. In the past few days, over 18,000 people have signed an open letter to Peers and MPs—I sent it to all noble Lords on Friday. They ask that you listen to them, and to the Northern Ireland Assembly, and do not approve these regulations. The Government have said that the vote is of no consequence: Northern Ireland must comply with its international human rights obligations. The CEDAW convention does not mention abortion. Article 29 is clear that nobody has the power to read in rights and none has been read in.
The report to the unelected, non-judicial UN CEDAW committee is not international law. There is no international legal obligation to pass these regulations. Parliament voted last July to require compliance with Articles 85 and 86 of CEDAW. The obligation makes it one of national, not international law. What Parliament makes, Parliament can unmake; we could repeal Section 9. No international human rights obligations derive from the CEDAW report. The Government say they have to table these regulations; that is not right. Section 9 says that, having tabled a set of amendments, the Secretary of State has a discretion, not a duty, to make further regulations.
There are 41 speakers in this debate. Eight of us from Northern Ireland have just 13 minutes in which to speak while the other 77 minutes are for Members who are not from Northern Ireland. Ninety minutes are not enough, given that no Northern Ireland Members are on the JCSI or the SLSC. The SLSC drew the regulations to the special attention of the House because Parliament was denied an opportunity for scrutiny and this is the first occasion on which your Lordships have been able to consider this radical change. There is no opportunity for amendment.
Some of these regulations do not even comply with CEDAW. Article 85 expressly stipulates that expanded access to abortion on the basis of disability must be made
“without perpetuating stereotypes towards people with disabilities”.
That is what these regulations do. They afford viable unborn babies from 24 weeks’ gestation protection from abortion, while saying that viable babies of exactly the same age can be terminated just because they have a non-fatal disability. Are the Government interested in achieving compliance not with Article 85 but with approving the 1990 discriminatory law in Great Britain which is now subject to legal challenge?
The regulations make sex-selective abortions lawful because there is no impediment to such abortions in them. The Minister has written to the noble Baroness, Lady Eaton, to say that the absence of an impediment does not mean that sex-selective abortion is permissible. In our legal system, anything is lawful unless it is unlawful. Canada introduced access to abortion without conditionality and the Canadian Medical Association Journal says that Canada is now regarded as a “haven” for sex-selective abortion. The identification of sex is available to pregnant mothers between seven weeks and 10 weeks of gestation. The Government have said that this is an abhorrent practice which is illegal in Great Britain because the grounds on which one can get an abortion do not include the sex of a child. In January of this year, the Government said that that is what English law states. These regulations will make abortion up to 12 weeks’ gestation lawful for any reason, which must include foetuses of the wrong sex. People think that we are being asked to vote for this measure to send a signal that sex-selective abortion should be accommodated throughout the UK. CEDAW has said that it
“aligns itself with the Committee on the Rights of Persons with Disabilities in the condemnation of sex-selective and disability-selective abortions, both stemming from the need to combat negative stereotypes and prejudices towards women and persons with disabilities.”
The regulations are silent on the matter of coercive abortion. The Istanbul convention requires protection against coercive abortion. I know that it has not been ratified, but we are supposed to be becoming more and not less compliant with it. In 2019 the Government said that Section 58 of the Offences Against the Person Act covers such behaviour, but it has been decriminalised and this House voted to remove it. Moreover, the regulations fail to provide the new, explicit offences that were promised by the Government. The only penalty for any offence is an inadequate fine of up to £5,000.
The Northern Ireland Attorney-General and many other eminent QCs have argued that Regulations 7, 12 and 13 are ultra vires. This resulted in a letter that was sent to all Members by a group of 38 Peers and MPs from across the UK and five different political groupings, highlighting that these regulations are not intra vires. Indeed, the repeal of part of the Criminal Justice Act is not even mentioned in the CEDAW report.
The Secondary Legislation Scrutiny Committee has expressed serious concerns about the inadequate nature of the consultation process. Be in no doubt: if you vote for these regulations, you will be giving discrimination a fresh mandate for GB, not just Northern Ireland. The regulations are not consistent with Section 9 and they have been rejected by the Northern Ireland Assembly. The proposals were rejected by 79% of respondents. Repeated demonstrations have occurred and an earlier letter to the Northern Ireland Minister was signed by 23,000 people. The regulations are not even compliant with CEDAW on disability discrimination and sex selection. This is not an international human rights obligation on the UK.
I ask noble Lords to listen to the people of Northern Ireland and listen to our Assembly. Do not approve these regulations. I will call a Division.
Amendment to the Motion
Lord Shinkwin
Leave out from “that” to the end, and insert “this House declines to approve the Regulations because (1) they are drafted in such a way as to promote the stereotype that those with non-fatal disabilities are worthy of less protection in law than those who are not disabled; (2) to that extent they do not comply with the recommendation in paragraph 85 of the United Nation’s Committee on the Elimination of Discrimination against Women’s report Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, published on 21 March 2018, in particular that legal grounds for abortion should be expanded ‘without perpetuating stereotypes towards persons with disabilities’; and (3) to that extent they are counter to the decision of the House on 17 July 2019 in amending the Northern Ireland (Executive Formation etc) Bill to implement the recommendations of paragraph 85 of that report.”
Lord Shinkwin (Con)
My Lords, I rise to speak to my amendment and in support of the amendment moved by the noble Baroness, Lady O’Loan, with specific reference to paragraphs (3) and (4). Many of us will have received an update from our party Whips about today’s business. My update stated unambiguously that, “Even though this is government policy, it will be a free vote.” There is no beating about the bush: this is official government policy which we are being asked to support. I think that that bears closer examination. In asking noble Lords to support the fatal amendment in the name of the noble Baroness, Lady O’Loan, I make it clear that while I will not be moving my amendment to a vote, I am asking them, in supporting the noble Baroness, to reject the official policy of the Government and therefore of the Conservative Party because it undeniably promotes and perpetuates disability discrimination.
As the youngest member of the National Disability Council, which was created some 25 years ago by the then Conservative Government to advise on the implementation of their ground-breaking Disability Discrimination Act, I helped to define in codes of practice what disability discrimination actually looked like. Central to the concept was the premise that there should be evidence of less favourable treatment on account of a human being’s disability. I would be interested to know how my noble friend the Minister thinks denying a human being who has been diagnosed before birth with a non-fatal disability such as mine the equal right to be born is somehow not less favourable treatment.
I have seen disability discrimination close up and I know what it looks like. That brings me to a report by the UN Committee on the Elimination of Discrimination Against Women. I am sure that my noble friend is familiar with Article 85 of Section VII, on page 21. But just in case he is not, let me remind him of what it says, and incidentally what the Government are deliberately choosing to go against. As the noble Baroness has explained, it states that abortion services should be expanded
“without perpetuating stereotypes towards persons with disabilities”.
No doubt my noble friend will be able to quote back to me Article 62 of Section VI on page 16. If not, let me jog his memory. It states that
“the Committee aligns itself with the Committee on the Rights of Persons with Disabilities in the condemnation of sex-selective and disability-selective abortions, both stemming from the need to combat negative stereotypes and prejudices towards women and persons with disabilities.”
I will be intrigued to hear from my noble friend the Minister how what the Government are pushing through Parliament is compliant with the committee’s recommendations in Articles 85 and 62, which I have just read out. But perhaps I am being stupid; after all, I am only a disabled parliamentarian. Perhaps I am missing something, or perhaps I am not.
Perhaps the Government could not care less about flouting not only the committee’s instructions but your Lordships’ House’s clear instruction, given almost a year ago today on 17 July 2019, when it amended the Northern Ireland (Executive Formation etc) Act 2019 to implement the recommendations of paragraph 85 of the CEDAW report.
Why does my noble friend the Minister think CEDAW, your Lordships’ House and, more recently, the Northern Ireland Assembly have all focused on the danger of stereotyping? It is hardly rocket science. The answer lies in two words, which both begin with the letter D: disability discrimination. That is what the Conservative Party claimed to have outlawed when it passed the Disability Discrimination Act 1995, yet here we are a quarter of a century later, with the Conservative Party back in government, asking people to continue to believe that it is against disability discrimination while imposing it on the only part of the United Kingdom that is a safe haven for human beings diagnosed with a disability before birth.
In conclusion, I implore the Prime Minister to intervene and save the credibility of his promised national disability strategy, which I presume is to counter discrimination. As a proud Conservative, I reject this government policy of disability discrimination and urge all noble Lords to do the same.
Lord Hain (Lab) [V]
My Lords, while I respect the views of others who disagree on this highly sensitive issue, as the referendum on abortion bringing radical change in the Republic of Ireland showed, there is now huge pressure on the island of Ireland for women’s rights. That was the impetus behind the change legislated for by this Parliament under the 2019 Act. I am sorry, but it is no good some local Assembly Members complaining. While they squabbled, refusing to do their jobs and instead maintaining Stormont in ignominious suspension for three years, the world moved on without them.
Women in Northern Ireland are now entitled to the same rights as in all other parts of the United Kingdom, and it is our statutory obligation to implement these regulations helping to set out the legal framework for services that will bring Northern Ireland into line with the rest of the UK and meet the requirements of Article 8 of the European Convention on Human Rights.
Baroness Barker (LD)
The procedure imposed by the Leader of the House is wholly inadequate, and proper scrutiny of government is failing.
For over a year Parliament has discussed how it will enable woman and girls in Northern Ireland to access safely the healthcare they need. Consultation has been extensive and transparent, both here and in Northern Ireland. Abortion is now decriminalised but remains highly regulated, as it should be, and staff uphold legal and professional standards. Women who have been raped or abused can now obtain the treatment they need close to home; Northern Ireland no longer exports the problem. Women whose 20-week scan reveals that they have severe foetal abnormalities will now have access to the safe services they need. These regulations should be supported and fully implemented as soon as possible for the benefit of all women in Northern Ireland.
The Lord Bishop of Carlisle [V]
My Lords, I support the amendment from the noble Baroness, Lady O’Loan, and will focus on the proposal in Regulation 7 that abortion for disabilities including Down’s syndrome should be available during the first 12 weeks without question or counselling and then potentially through to birth.
The General Synod of the Church of England has overwhelmingly approved a motion on valuing people with this syndrome. We have worked closely with people such as Heidi Crowter, who has Down’s syndrome and has already been widely quoted in the House of Commons calling on MPs and Peers not to vote for regulations that, in her words, “contain discriminatory provisions”.
If we approve these regulations we will be in the contradictory position of declaring on the one hand that people living with disability are valued, respected and cherished, but on the other that any disability—which can be a very broad concept—in and of itself, and regardless of other considerations, constitutes an automatic ground for termination.
Lord Alton of Liverpool (CB)
My Lords, be clear: CEDAW makes no mention of abortion. Moreover, the committee report—which is binding only because we have made it so—expressly condemns disability-discriminatory and sex-selective abortions, which these regulations do not. Instead, they fly in the face of devolution, ignoring the overwhelming and united views of Northern Ireland’s majority, manifested in polls and a recent vote of the Northern Ireland Assembly.
These regulations also fail the good governance test. Our Secondary Legislation Scrutiny Committee said the time provided for consultation—which generated 21,000 responses, with 79% opposed—was
“too short for so sensitive a topic.”
It concluded that Parliament was denied
“an opportunity for scrutiny before the instrument came into effect.”
Ignoring our own scrutiny committee, the devolved Assembly and the considered views of disability groups, charities and the Attorney-General for Northern Ireland will simply bring Parliament into disrepute. That is why, whatever your views about abortion, we should vote “Content” to my noble friend’s amendment.
Lord Empey (UUP) [V]
My Lords, I regret to say that as a parliamentarian I am not proud to participate in these proceedings. Since this started last year, the parliamentary process has been outrageous. The legislation should never have been allowed on to the statute book in the first place and our proceedings tonight, with one-minute speeches, are an insult to all the people of Northern Ireland. We were told repeatedly throughout last year that we could not raise health issues, despite the fact that people were dying, or the RHI because it was a devolved matter. Now that we have devolution, it has been set aside.
Can the Minister confirm whether any party in Northern Ireland asked the Government to take on this responsibility because it does not have the guts to do it? If he does not have an answer for me tonight, can he write a letter to me and put it in the Library so that the rest of us can see what really happened?
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
I call the noble Lord, Lord Dubs. Let us try again; I call the noble Lord, Lord Dubs. No? If we have time, we will come back to him. I now call the noble Baroness, Lady Burt of Solihull.
Baroness Burt of Solihull (LD)
My Lords, in all my dealings with the DUP—social and otherwise—it has always struck me just how much it values being a full part of the United Kingdom. Its loyalty to Britain and the Queen is beyond doubt, yet today it tries to deny Northern Ireland women the same rights as women in the rest of the United Kingdom. Why does it not believe in equal rights for everyone in the United Kingdom?
Not having equal human rights in Northern Ireland contravenes the Istanbul convention and has been used by several Governments as an excuse for holding back ratification. Will the Government finally, eight years after signing it, now please ratify the Istanbul convention?
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, this legislation solely affects the people of Northern Ireland. It was introduced wrongly in the first place and now, to add insult to injury, we have a conflict with the democratic decision of the Northern Ireland Assembly.
Every day we have listened to a homily from Ministers telling us how important it is to save lives, yet statistics show that in England and Wales nearly 210,000 children were lost to abortion in 2019. This legislation in Northern Ireland is even more liberal. This is immoral, and each of these cases represents a failure of society to protect the lives of babies in the womb.
During the pandemic, the BBC and other media crews were permitted into ICU wards to show the serious reality of what happens when a person is struck down with Covid-19. I wonder whether the film crews will be allowed into the theatres to show the brutality of how a child is torn from its mother’s womb just because the child has a disability, including Down’s syndrome. Is there no compassion left? I protest, and I beg this House to have mercy upon the innocent children who have done no wrong, only requesting the right to live. This legislation ensures that their voice will not be heard, and I support the amendment.
Lord Elton (Con) [V]
My Lords, CEDAW has often been cited in support of the regulations. It is notable that abortion is actually never mentioned in it. My noble and learned friend Lord Mackay has pointed out that Parliament cannot bind its successors. There was a great dereliction when a proper opportunity to give Parliament a chance to reconsider repeal of Section 9 was missed. However, the words that have moved me most in this debate have been those of the noble Lord, Lord Empey. He pointed out that this has been a disgraceful misuse of parliamentary procedure, denying the proper level of consideration by your Lordships and the other House, and the fact that the Joint Committee has not drawn this to your Lordships’ attention makes it essential that its composition is revised in the future.
Baroness Masham of Ilton (CB) [V]
My Lords, my husband and I adopted two six-week-old babies. I felt the joy of babies growing up and the need to protect little children. Today, I feel the need to protect the unborn child. The regulations allow abortion up to birth for babies with disabilities but limit it to 24 weeks for non-disabled children. Many people are dismayed and horrified by this discrimination. There is no protection for healthcare professionals if they do not wish to perform abortions, which are slaughter. These discussions should be left to the Northern Ireland Assembly.
Baroness Northover (LD) [V]
My Lords, in 2018, the Supreme Court described the law on abortion in Northern Ireland as “untenable”, “disproportionate” and incompatible with Article 8 of the European Convention on Human Rights. With Stormont not sitting, two-thirds of Northern Irish people supported Westminster reforming their abortion law, which we duly did. Abortion is now legal in Northern Ireland, as it is in the rest of the UK. The regulations establish a framework of provision. Currently, there are no routine services beyond 10 weeks of pregnancy, and women are still forced to travel to England via the Government Equalities Office scheme. During lockdown, few have been able to travel, with resultant distress. Without these provisions, abortion care services may stop, and women may turn to unregulated services, which no one could want. Therefore, I urge noble Lords to support the regulations.
Baroness Thornton (Lab)
My Lords, the law already stands. The Government have a legal duty, under the Northern Ireland (Executive Formation etc) Act 2019, to comply with their international human rights obligations. The regulations provide the framework for access to abortion services and the fulfilment of that legal duty. Abortion is legal in Northern Ireland; the regulations simply establish a framework for provision. Let us move forward, not backward. The focus should be on implementing the regulations, not dragging us backwards. The private business Motion in the Assembly changes nothing in effect. It signalled a desire to roll back the hard-won rights of women and girls in Northern Ireland. It is time we moved forward.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, the regulations are out of keeping with the majority view of the Northern Ireland Assembly, which two weeks ago voted against the imposition of such regulations. That debate was anchored around the section of the legislation that deals with the most egregious aspect of the abortion regulations, that of severe disability, which has been characterised by Heidi Crowther, the Down’s syndrome girl, as suggesting that this legislation does not want people like her. I am very conscious that we must all be careful about our language.
The legislation which fuels these regulations was passed contrary to the devolution settlement that underpins the Good Friday agreement. Clearly this matter is exclusively for the local Assembly, and I note what my noble friend Lord Hain said about that. That was determined by the European Court of Human Rights.
The regulations, which act as the driver for the legislation, are not compliant with the UN’s 2007 Convention on the Rights of Persons with Disabilities. I will support the amendment in the name of the noble Baroness, Lady O’Loan.
Lord Duncan of Springbank (Con)
My Lords, if this were the only occasion on which we had debated this legislation I might have some sympathy with those who tabled the amendments, but it is not. The last time that we discussed this, a great deal of time was spent on forecasts and predictions. There were to be rogue clinics, unusual practitioners, a whole range of elements. Time has passed, and they have not happened.
Women in Northern Ireland have, for the first time, the rights which we across the waters have. It is time we recognised that this is a step forward. Having 1,000-plus women crossing the Irish Sea to come to England to have their rights exercised is not sensible, nor is it fair. These amendments are not worthy of support and it is time to move on. It is time to support these regulations.
Baroness Harris of Richmond (LD) [V]
My Lords, these regulations, as we have heard, introduce a framework to implement the CEDAW recommendations. It is time that those recommendations were fully enacted.
I say to those who want Northern Ireland to go in a different direction from the rest of the United Kingdom that they cannot have it both ways. We are all part of the same union, so women in Northern Ireland must be treated equally. It is their human right. Former chairman of the British Medical Association Dr John Marks, speaking after his retirement in 1999, said:
“Looking back over these 40 years, it seems to me that the event which has had the most beneficial effect on public health during that period has been the passage of the abortion Bill”.
That is a quite remarkable statement for such a senior medical person to make, and one we should note.
Lord Browne of Belmont (DUP) [V]
My Lords, these regulations inexplicably fail to provide for the inspection of NHS abortion provision. Last Monday, the Minister in the other place said that
“we have sought to achieve the same outcomes as the frameworks in place across the rest of the UK.”—[Official Report, Commons, 8/6/20; col. 44.]
A recent Northern Ireland Assembly question confirmed that the relevant NI inspection body, the Regulation and Quality Improvement Authority,
“do not have any powers specifically in relation to abortion providers as they are not a discrete category of provider required to register with, and be inspected by, RQIA.”
Regulation 8 could have been drafted so that when the regulations came into effect there was a proper inspection regime in Northern Ireland, as in England. Without such a regime, the regulations carelessly leave women significantly less protected than in England and Wales. Consequently, the regulations are not fit for purpose. I will vote “Content” on the amendment tabled by the noble Baroness, Lady O’Loan.
Baroness Finlay of Llandaff (CB) [V]
My Lords, abortion is difficult; there are two lives. I welcomed David Steel’s law. I have resuscitated women after back-street abortions, assisted at vacuum abortions, shared the sadness at an aborted late foetus, signed abortion forms and supported many women. Whatever your views, abortions will happen and must be safe, but not viewed as convenient sex selection.
Constitutionally, there is a problem with this statutory instrument. It was wrong to exploit the lacuna of Stormont not sitting to impose legislation that is wider than in England and Wales. Northern Ireland is in an unstable position as we leave Europe. It must decide for itself if it joins Eire’s framework or legislates in line with the rest of the UK, but we should not impose on it. I support the amendment tabled by the noble Baroness, Lady O’Loan, and will vote “Content”.
Lord Morrow (DUP)
I am not clear how these regulations meet the UK’s existing convention obligations, which include legislation on forced abortions. Section 58 no longer applies in Northern Ireland, and these regulations fail to provide such explicit new offences. The only penalty for any offence in these regulations is a breathtakingly inadequate fine of up to £5,000. The only other potentially relevant offence is in the Offences Against the Person Act 1861, but as Ian Wise QC has pointed out, it is wholly inadequate because abortions are not regarded as poisoning the women. The regulations are manifestly not fit for purpose. Needless to say, I shall support the amendment in the name of the noble Baroness, Lady O’Loan.
Baroness Hayter of Kentish Town (Lab)
My Lords, the amendments are in a way not quite what they appear, and the support we have seen is actually from people who fundamentally disagree with abortion and who want to prevent women from having abortions in Northern Ireland. However, let us be clear, women will still have abortions, as has been said, but they will be forced to travel—including in transport that is very high risk at the moment—to have their legal right either in England or elsewhere. That might salve the conscience of those who do not want abortions to take place in Northern Ireland, but they will still take place. Let us do this properly. Let us allow abortions to take place where they have to—they are never wanted—in the place nearest to where those women live.
Lord Bourne of Aberystwyth (Con) [V]
My Lords, we have essentially already voted in favour of this law. I shall support the regulations; they provide greater clarity and certainty, protecting the health, safety and human rights of women. I understand the emotions on this matter, but I think it is right that there should be decriminalisation in Northern Ireland as in the rest of the United Kingdom. I also think that the human rights law dimension is very clear, particularly the Convention on the Elimination of All Forms of Discrimination against Women and the Supreme Court judgment, as well as broader human rights law. It is a simple matter ofthe rights of women. Although I understand the devolution element, the noble Lord, Lord Hain, was absolutely right that this was passed because, at the time, there was no Assembly, and we were right to act.
Lord Taylor of Warwick (Non-Afl)
My Lords, in 1996, I presented the Bill that enabled the UK’s first DNA database. At the moment of conception, life starts with unique DNA that no one else in the world has. Abortion is a distortion of that right to life. I oppose these regulations, and I totally support the points made in particular by the noble Baroness, Lady O’Loan, and the noble Lord, Lord Shinkwin. This year, there have been just over 430,000 deaths from Covid-19 worldwide. That is dreadful, but let us compare it with over 90 million abortions worldwide so far this year. Abortion is legal only because babies cannot vote. Life is a civil right, while abortion is a moral wrong. Abortion is a distortion.
Baroness Scott of Needham Market (LD) [V]
My Lords, I am a member of the Joint Committee on Statutory Instruments. As we received a high volume of correspondence on these regulations—indeed, it has been mentioned in the debate today—I thought it might help the House if I briefly outlined the role of the committee. Our role is to draw the attention of Parliament to statutory instruments on technical grounds, including retrospection, defective drafting and the scope of enabling powers. The merits are strictly not within our scope.
For this order, it is apparent that the strong differences of opinion include on whether it is within the enabling powers. However, the opinion of the committee was that we were unable to report this SI to the House as being outside the scope of enabling powers. This is not to argue that it is within them, but it is to say that these debates need to take place on the Floor of the House to preserve the political independence of the Joint Committee. The merits and the law of this instrument need to be decided by the House in debate, as it is today.
Lord Harries of Pentregarth (CB) [V]
My Lords, I support the amendment in the name of the noble Baroness, Lady O’Loan, for the simple reason that it is fundamental to the devolution settlement that we respect the view of the people of Northern Ireland as made known through the votes of the Assembly—and it has been made known, with absolutely no ambiguity. These regulations were decisively rejected in two key votes. Of the 90 Members of the Assembly, 75 voted against. On abortion generally, I support the position of the Church of England, which is to support abortion in certain, very clearly defined circumstances. As far as I can see, these regulations go beyond the law in the rest of the UK in a way that is unacceptable. The Government have said that they are under a legal obligation to enact this law, but Governments sometimes make laws that they later reverse because of some overriding consideration. There is an overriding consideration in this case: the people of Northern Ireland have said clearly and firmly that they want to make their own law on this issue.
Lord Maginnis of Drumglass (Ind UU) [V]
I thank noble Lords. I want to make it clear at the outset that I, the father of four and the grandfather of seven, am in principle totally opposed to abortion, except in absolute emergency terms to save a mother’s life. I am appalled by some assertions I hear today that these regulations are no more permissive than the 1967 Act. That is just not true. It is known that in Northern Ireland, we celebrate the fact that 100,000 people are alive today who would not be had we embraced the 1967 Act. I ask colleagues to consider what Northern Ireland’s society will be by 2045 and beyond, in terms of age imbalance, if Westminster’s imposed abortion terms become law. I ask the Minister answering this debate to quantify that issue.
I had a four-minute speech and was disgusted to learn that I was allowed to speak for one minute on this vital issue for the people of Northern Ireland.
Lord Cormack (Con) [V]
My Lords, I speak as a former chairman of the Northern Ireland Affairs Committee in another place, and I approach this from a constitutional position. I was very moved by the speeches of the noble Lord, Lord Shinkwin. the noble Baroness, Lady Finlay, and the noble and right reverend Lord, Lord Harries, and I came to the same conclusion as they did. It is quite wrong, first of all, to rush this through with one-minute speeches and—now that we have a fully functioning Assembly that has made its concerns abundantly clear—for us to ignore the devolution settlement. We are not ignoring devolution in the battle against Covid-19, and nor should we. The four constituent countries of the UK are taking differing approaches in details. It is absolutely necessary, if you believe in devolution, to honour devolution and to let this decision be taken where it should be: in Stormont.
Lord Campbell of Pittenweem (LD) [V]
My Lords, I respect, and indeed even admire, those noble Lords who oppose abortion on the grounds of sincerely-held moral objections, of which we have heard on several eloquent occasions this evening. However, I shall vote for the Motion, first, because of the observations of the Supreme Court, but also for this reason: I do not believe that female United Kingdom citizens living in Northern Ireland should suffer discrimination as compared with female citizens of the United Kingdom elsewhere.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I oppose the two amendments to the Motion and support the regulations. I associate myself with the remarks of the noble Baronesses, Lady Barker, Lady Northover, Lady Thornton and Lady Hayter, and the noble Lord, Lord Taylor. The British Medical Association has welcomed this framework as an important step forward for the provision of abortion services in Northern Ireland. That provision of essential, safe and legal abortion services within Northern Ireland is something that I have campaigned for since 2008, although I also agree with the British Medical Association that abortion should be decriminalised across the UK.
Until the Covid-19 epidemic, I had long pointed out how this is an issue of equality: that rich women have always been able to travel to access safe, legal abortions. Now, as the women of Malta have been encountering, that is not true under the conditions of an epidemic. We need safe, legal abortions to be available to women everywhere in the world.
Lord Balfe (Con) [V]
My Lords, first, abortion is legal in Northern Ireland. Regulations are already in operation, and this is a framework. The BMA, which I sometimes suggest is a trade union for doctors, welcomes the regulations. It has three observations. First, as has been mentioned, it does not believe that healthcare workers should be subject to criminal sanctions. I agree with that. Secondly, it believes that abortion should be decriminalised across the UK. I agree with that. Its third observation—this is an issue that has not yet been mentioned—concerns the omission of the creation of exclusion zones outside confidential abortion services. That matter should be pursued, and if the Northern Ireland people are unhappy, they should reflect on the fact that for years they talked to themselves rather than address the needs of their population.
Baroness Hollins (CB) [V]
My Lords, fear of difference and otherness extends to disability. Many of us still grow up with no personal experience of people with Down’s syndrome or cerebral palsy, and children might be cruel to someone with a cleft palate, but those are not reasons to propose the discriminatory practice of abortion for unborn babies with these conditions up to birth. This practice offends children and adults who live with so-called impairments, and it offends families who love their disabled family members unconditionally and are tired of seeing them discriminated against. Many people with Down’s syndrome say that it makes them feel like they should not have been born. A truly liberal society would welcome and celebrate difference. As my noble friend Lady O’Loan said, Regulation 7 is not CEDAW compliant: paragraph 85 stipulated that the law must be changed
“without perpetuating stereotypes towards disabled people.”
As a doctor and a mother, I support the amendments.
Lord Mann (Non-Afl) [V]
My Lords, we all need to be respectful of each other’s views. Those of us who support the Government tonight have no deficiency in our morality, nor do we have any lesser ethics or standards of ethics than anybody else. By rejecting these regulations, going back to the Offences Against the Person Act 1861 and allowing women theoretically to be jailed for life for having an abortion is not where the world should be at the moment. I believe in equality of rights and in safety in healthcare. That is why I will be supporting the Government and opposing the amendments tonight.
Baroness Eaton (Con) [V]
My Lords, Regulation 3 allows abortion for any reason up to 12 weeks’ gestation with no exclusions. New tests are available that determine the child’s sex before 12 weeks; thus sex-selective abortion is now lawful in Northern Ireland. Last Monday, the Minister said:
“I make it clear … that the abortion regulations do not allow abortions on the grounds of sex selection.”—[Official Report, 8/6/20; col. 1626.]
Brett Lockhart QC has responded:
“I confess to being entirely unclear as to how one could legally have come to that opinion”.
Writing in ConservativeHome today, leading human rights activist Jasvinder Sanghera responded:
“Unless … there is a provision in the regulations currently held from sight by invisible ink, this assertion seems plainly wrong”.
She continued:
“The last thing we need now is for the Government to send the message that its resolve to address sex selective abortion is weakening and indeed, as far as Northern Ireland is concerned, evaporating.”
I will vote “Content” in favour of the amendment proposed by the noble Baroness, Lady O’Loan, and against the regulations.
The Deputy Speaker
The noble Lord, Lord Kilclooney, is not in the Chamber. I now call the noble Baroness, Lady Stroud.
Baroness Stroud (Con) [V]
I urge the House to reject these regulations by voting to support the amendment of the noble Baroness, Lady O’Loan. This is an urgent issue of democracy and of disability equality. As we have heard, the Northern Ireland Assembly has already said no to these regulations. If that was not clear enough, support for rejecting the regulations only increases when people understand that non-fatal disabilities have been included in these regulations, including Down’s syndrome. Taking this into account, 75 of 90 MLAs rightly rejected the disability discrimination inherent in these regulations. One Parliament cannot bind the hands of another on a devolved matter. Do not be deceived: these regulations go significantly beyond what was required by CEDAW and impose on Northern Ireland what we would never accept here. I urge this House to understand the importance of respecting the Northern Ireland Assembly. I urge this House to stand up for democracy and stand for disability equality and support the amendment tabled by the noble Baroness, Lady O’Loan, and vote “Content”, sending a message to the Government that they still have time to think again.
Baroness Deech (CB) [V]
My Lords, the Northern Ireland Act does not limit Parliament to the recommendations of CEDAW; it is broader. This is an exercise of parliamentary sovereignty.
Secondly, it has been held in law that the unborn do not have rights under the European Convention on Human Rights. However, most of all, I draw attention to something shameful. There is respect for the foetus, I hear from our Northern Ireland colleagues. Why, then, until very recently, when the mother had her perhaps unwanted baby out of wedlock, were they put in mother and baby homes and Magdalene laundries, subject to arbitrary detention and forced adoption? There is a four-year, ongoing interdepartmental working group looking into the shameful treatment of mothers and babies in Northern Ireland, which the UN Committee Against Torture recommended. I do not understand this respect for the foetus if it does not carry over to the born baby and the mother, so I support the regulations.
Lord Dubs (Lab) [V]
My Lords, I shall support the regulations and oppose the two amendments. I shall do so because we have to stop women from Northern Ireland having to travel to England for abortions. The consequence of these amendments would be to increase the amount of travel, and it would not lead to safety or the other changes that are being talked about. I am satisfied that 130 women, as I understand it, have already had abortions in Northern Ireland and have not had to travel to England in these dangerous circumstances, when travel should be much discouraged. The evidence of public opinion in Northern Ireland is that they want a change in the law and would welcome these regulations. When one looks at the detail of it, the younger people in Northern Ireland are even keener on the change, as they were in the Republic. Therefore, I am satisfied that this is the right way forward. It is in the interests of human rights and something that the women of Northern Ireland have wanted for many years.
Lord Bruce of Bennachie (LD) [V]
My Lords, these regulations emerge at the end of a drawn-out process. Yes, it is a conscience issue and a difficult one, and people will express, and have expressed, their own views and will no doubt vote accordingly. Yet I point out that these supporters of the amendments are mostly opposed to abortion in almost any circumstances. I believe that these regulations represent a crucial step in the rights of the women of Northern Ireland, which also featured little in the pro-amendment speeches.
During the three years when Northern Ireland was denied a functioning Assembly and Executive, the unfairness and dysfunctionality of the abortion law in Northern Ireland came under increasing strain. Consultation and a referendum led to a radical change of the law in the Republic, and the Supreme Court made it clear that the lack of a clear law on abortion in Northern Ireland was in breach of human rights. The CEDAW convention certainly may not mention abortion, but it absolutely talks about the criminalisation of abortion—or rather it does not, but its interpretation views it—as a clear discrimination against women, which CEDAW is obviously there to uphold against. The gap between the law in Northern Ireland and the rest of the United Kingdom is putting women in Northern Ireland under intense and unfair pressure. It effectively was exporting abortion services to Great Britain and, as has been said, not every woman was able to or could afford to access that route.
Had the Assembly been in operation over the past three years, it would have had to address this issue. Had it done so, Members of the Executive could not have ignored the Government’s support of CEDAW and its inference, nor could they have ignored the Supreme Court judgment. The British Parliament had no choice but to recognise its responsibility and, indeed, the wish of a huge swathe of opinion across Northern Ireland. The anomaly in the law created pressure for this UK Parliament to act, which it has done. These regulations are the last step in bringing about the change to the law, and it is important to stress that their application rests on the rigorous standards of the health professionals who, in my view, appear to have been impugned by some of the speeches made today.
There are two ironies to be noted. The nationalists now find that, had the law not changed, the north would have been significantly out of step with the Republic. Unionists, by contrast, can hardly maintain their insistence on being thirled to the United Kingdom but not accept that basic human rights must be uniform across the UK. On a practical point, very little has yet changed for women in the north seeking an abortion, although the noble Lord, Lord Dubs, indicated that a start has been made.
Can the Minister give an update on what abortion services are now being made available to women in Northern Ireland? Can he indicate what guidance can be given to women needing access to abortion pills? Will he acknowledge the stress that women face approaching the 12-week deadline—or indeed, any deadline—while lockdown continues? Is it not safer to give online advice to take pills safely at home, with appropriate guidance, rather than force women to travel to access services and take greater risks of infection—or, indeed, if they are unable to do that, face being prevented from travelling and being unable to access the service they need at all?
These regulations are a necessary instrument to deliver the change in the law which this Parliament has supported and for which the Northern Ireland Assembly has abdicated its responsibility for over three years. Indeed, if the amendments were upheld, there would be no law of abortion functioning in Northern Ireland. Neither those who wish for a regulated and proper form of abortion nor those who are opposed to abortion would have the law on their side. Therefore, it is imperative that we support the regulations and reject the amendments.
Baroness Smith of Basildon (Lab)
My Lords, it is exactly a year ago yesterday that the noble Lord, Lord Duncan—then without his beard—and I sat opposite each other across the Dispatch Box. We had a long and detailed debate on this very issue of abortion in Northern Ireland while discussing the Northern Ireland (Executive Formation etc) Bill, which is now an Act. It was evident then, as tonight, that this is a subject on which there are strong and deeply held convictions. For some, no law permitting abortion could ever be acceptable. For others, it is a fundamental issue on both health and human rights grounds that abortion services should be available safely and within a legal framework.
Until the Northern Ireland (Executive Formation etc) Act, it remained a criminal offence to access abortion in Northern Ireland in almost any circumstances, unlike in the rest of the UK. We have heard about CEDAW this evening, which specifically referenced the Northern Ireland position as a “grave and systematic” violation of rights. The UK Supreme Court in 2018 found that the law on abortion in Northern Ireland was, as we heard earlier, “untenable and intrinsically disproportionate” and in need of “radical reconsideration”. It made particular reference to abortion not being legal even when pregnancy was as a result of rape. So, there was no access to safe and legal abortion in Northern Ireland other than through a very limited provision, which had itself faced a number of legal challenges and interpretations.
In the legislation last year, abortion in Northern Ireland was decriminalised. As a result, today, across the whole of the UK, existing legislation makes provision for the termination of a pregnancy. But it was also made clear last year that regulations would follow to put in place in Northern Ireland a framework for those abortion services, with guidelines on how the law would operate if the Assembly was not restored by 21 October 2019. In the event that it was not, it would be a statutory obligation for the UK Government to bring forward the regulations.
I appreciate that a number of noble Lords referenced in the debate that, last week, the Northern Ireland Assembly expressed a view against part of the regulations before us. However—this is an important point—it did not bring forward any alternative proposals to address the findings of CEDAW or the Supreme Court to make sure that, as part of the UK, Northern Ireland also ensures that it is compliant with the UK’s human rights obligations. If these regulations do not pass tonight, and if the fatal amendments of the noble Baroness and the noble Lord pass, the current legal framework, which is in place through the “made affirmative” order that we are discussing, will fall. It would remain the case that abortion is decriminalised and, as my noble friend Lady Hayter said, that the citizens of Northern Ireland could travel to the UK, with travel and accommodation provided, to access free abortion services—although that is extraordinarily difficult at the moment—but the legal framework as outlined in this instrument would not be available.
These regulations provide clear guidance, which is of paramount importance to healthcare professionals. It is highly significant that the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives and the BMA support the passing of the regulations and oppose the amendments; I am sure that other noble Lords have had similar communications.
On the specific issue of constitutionality, as was raised by noble Lords, it is highly unusual for this House to support fatal Motions through an SI; I think this has been done some six times since 1945. As an unelected House, our role on secondary legislation is limited and narrow. At times, that is frustrating, but it is the role of your Lordships’ House.
I have a couple of questions for the Minister, mainly about how services will be provided and, given that the UK Government have responsibility for complying with human rights obligations, as I understand it, what the Minister can do ensure compliance with these regulations. In his introduction, the Minister recognised that the Northern Ireland Assembly could amend the regulations in the future if it chose to do so. If it does, where does the responsibility lie for compliance on human rights issues, as outlined by the UK Supreme Court?
Also, as the noble Lord, Lord Balfe, mentioned, the BMA is concerned about the support available to women seeking advice and healthcare professionals. What action can be taken and what support can be given to provide exclusion zones outside confidential abortion services, thus protecting the women who need such advice and the people who work in them?
I support the regulations and oppose the amendments.
Viscount Younger of Leckie
My Lords, I find myself agreeing with pretty well all the comments made by the noble Baroness, Lady Smith. I thank her for her remarks. I also thank all noble Lords who contributed to the debate.
I fully recognise that this is a sensitive and emotive issue for many. I have listened very carefully. I recognise that several noble Lords with long-held views registered their strong opposition to what we are doing but, as the noble Baroness, Lady Thornton, said, we are under a clear statutory duty; and, as the noble Lord, Lord Hain, said, it is important that women and girls in Northern Ireland are afforded equal rights to those living across the rest of the UK. On the other side of the argument, there are some who consider that we have not gone far enough.
Before I turn to the issues raised, a few noble Lords questioned the extent of our legal powers. I note, as the noble Baroness, Lady Scott, said, that the JCSI has not drawn the instrument to the attention of both Houses for being ultra vires. The noble Lord, Lord Elton, and my noble friend Lord Cormack should know that the Procedure Committee agreed that, like others, these regulations are at present subject to 90 minutes. This was also subject to agreement in the usual channels.
I also note the amendments to the Motion tabled by the noble Baroness, Lady O’Loan, and my noble friend Lord Shinkwin, and I hope that my answers on the issues raised this evening go some way to indicating why the amendments should not be supported.
Some noble Lords, including the noble Baronesses, Lady Ritchie and Lady O’Loan, and my noble friend Lady Stroud, raised the constitutional propriety of these regulations being legislated for from Westminster, and the Northern Ireland Assembly’s debate on 2 June, which called for the removal of regulations permitting abortions in the case of severe foetal impairment rather than fatal foetal abnormality.
As my noble friend Lord Bourne pointed out, the UK Parliament, by way of Act of Parliament, compelled the UK Government to ensure that the regulations were in force by 31 March 2020. Section 9 of the Act would not have applied if an Executive in Northern Ireland had been set up on or before 21 October 2019, as set out in Section 13 of the Act. Had that happened, the regulations could not have been made.
The Motion itself does not tell us what the Northern Ireland Assembly is for; it highlights only the part of the regulations that it is against, which the noble Baroness, Lady Smith, pointed out. I remind noble Lords that the regulations can be amended in Northern Ireland should that be so wished in the future, so long as any amendment is compatible with the ECHR and compliant with CEDAW—again, as the noble Baroness, Lady Smith, said.
On the issue of disability, I fully appreciate the concerns raised, particularly in the powerful contribution from my noble friend Lord Shinkwin. He is a friend and I have a particular respect for him. I recognise that this is a highly sensitive issue. Noble Lords are aware that part of these regulations calls for access to abortion in the case of both severe foetal impairment and fatal foetal abnormalities. It is our firm view that the regulations fully comply with the statutory duty under Section 9 of the NIEF Act, which includes implementing all 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. We maintain that the regulations are consistent with the rights under the United Nations Convention on the Rights of Persons with Disabilities, which is an important point to make.
Turning to sex selection, raised by the noble Baroness, Lady O’Loan, and my noble friend Lady Eaton, medical practitioners are under no obligation to provide treatment in all cases under Regulation 3, irrespective of the absence of an express requirement for the woman to meet a legal test for gestations up to 12 weeks. That would particularly be the case where the practitioner has concerns that the woman is conflicted and undecided on whether to proceed with the abortion, where they have reason to believe that the woman has been coerced or put under pressure by a partner or family member to proceed, or where other issues of concern are identified. Furthermore, in Northern Ireland under the NHS, scans to detect the sex of the foetus take place between 18 and 21 weeks’ gestation. At that stage of gestation, a woman would be able to access an abortion lawfully only up to 24 weeks’ gestation where
“the continuance of the pregnancy would involve risk of injury to the physical or mental health of the pregnant woman which is greater than if the pregnancy were terminated”
or with no gestational limit in relation to severe foetal impairment or fatal foetal abnormality or where there is
“Risk to life or grave permanent injury to physical or mental health of”
the pregnant woman, or in cases of immediate necessity, as pointed out earlier. This is similar to the rest of the UK under the Abortion Act 1967.
Data collection, analysis and publication on abortion-related matters, including sex selection in Northern Ireland, will be a matter for the Department of Health in Northern Ireland to take forward, as part of commissioning full abortion services, consistent with the Northern Ireland regulations.
I recognise that a few noble Lords have concerns about the regulations providing unconditional access to abortions up to 12 weeks’ gestation. As I noted in my opening remarks, the 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. 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.
We consider that this approach will ensure that women resident in Northern Ireland will have access to abortion without conditionality in the vast majority of cases where it is their individual choice to use it. This approach ensures compliance with CEDAW requirements. This is appropriate given that the position in Northern Ireland, following repeal of Sections 58 and 59 of the Offences Against the Person Act, is that abortion early in pregnancy has been lawful since October 2019.
The noble Baroness, Lady Smith, asked some questions about compliance with regulations, and I will write to her because I have a lot that I would like to say about the close co-operation between the health services in England and Northern Ireland in terms of helping where required. The health service in Northern Ireland should take these regulations forward and provide top-class services for those women and girls who require an abortion service.
The noble Lord, Lord Morrow, the noble Baroness, Lady O’Loan, and others stated that the regulations do not provide adequate sanctions and, therefore, leave a big gap in the law, putting women at risk of abuse and coercion. I hope I can reassure them that that is a misleading interpretation of the protections that remain in place across the statute book to protect the health and safety of women and girls. As well as the sanctions for intentional breaches of the regulations, other criminal laws continue to apply. Taken together, they ensure that the safety of women and girls remains paramount, and that medical professionals are able to provide abortion services in good faith and in the interests of their patients within clear legal parameters.
As you might expect me to say, with 41 speakers, it is impossible to answer every question. I will look extremely carefully at Hansard after this debate and I shall certainly write a letter to address all the points that I have not managed to address. Bearing in mind the strong feelings expressed this evening, the regulations are ultimately about the rights of women and girls and them 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, as the noble Lord, Lord Dubs, and the noble Baroness, Lady Hayter, said, to prevent women and girls being forced to cross the Irish Sea for abortion services. That is why I commend the regulations to the House. I beg to move.
Baroness O’Loan
I wish to draw to the attention of the House that the noble Lord, Lord Kilclooney, was told that he was not permitted to speak, and he left the Chamber in disgust.
The noble Lord, Lord Duncan, suggested that we have discussed these regulations before. We did not know there would be sex-selective abortion to 12 weeks. That is not allowed in Great Britain, and what the law does not forbid is permitted. We did not know there would be abortion to birth for non-fatal disabilities. The noble Lord, Lord Hain, suggested that Ireland has corresponding regulations; the law in Ireland is much more limited. Three of the regulations are manifestly ultra vires. The Government have power under Section 9 to amend these regulations. There is no international legal obligation to give effect to these regulations. The Government could introduce different regulations; it is not this or nothing. I am going to ask the noble Lords to vote “Content” to my amendment. I wish to test the opinion of the House.
Lord Shinkwin
Leave out from “that” to the end, and insert “this House declines to approve the Regulations because (1) they are drafted in such a way as to promote the stereotype that those with non-fatal disabilities are worthy of less protection in law than those who are not disabled; (2) to that extent they do not comply with the recommendation in paragraph 85 of the United Nation’s Committee on the Elimination of Discrimination against Women’s report Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, published on 21 March 2018, in particular that legal grounds for abortion should be expanded ‘without perpetuating stereotypes towards persons with disabilities’; and (3) to that extent they are counter to the decision of the House on 17 July 2019 in amending the Northern Ireland (Executive Formation etc) Bill to implement the recommendations of paragraph 85 of that report.”