Abortion (Northern Ireland) Regulations 2021
(Limited Text - Ministerial Extracts only)
Read Full debateThe Committee divided: - Ayes: 13 / Noes: 3 - Question accordingly agreed to.
The Chair
Before we begin, I remind Members to observe social distancing and to sit only in the places clearly marked. I also remind Members that Mr Speaker has stated that masks should be worn in Committee. Hansard would be most grateful if Members could send their speaking notes by email to hansardnotes@parliament.uk.
The Minister of State, Northern Ireland Office (Mr Robin Walker)
I beg to move,
That the Committee has considered the Abortion (Northern Ireland) Regulations 2021 (S.I. 2021, No. 365).
I recognise the clear will of the House for the Government to deliver on its statutory duty with respect to access to abortion services in Northern Ireland. It was on the basis of human rights that, during an absence of devolved Government, this House decided that it was time to step in. Colleagues will recall previous debates in 2019 and 2020, and the outcome of those debates. Today’s debate is not about reopening or unpicking the 2020 regulations, but to ensure implementation of the law that has been in place for over a year.
I acknowledge and respect the deeply held views that Members have on this issue, and I am glad that the decision of the usual channels to allow a free vote will allow all Members to vote according to their conscience. As the Committee will be aware, we previously made the Abortion (Northern Ireland) Regulations 2020, which came into force on 31 March 2020, to set out the new legal framework for the provision of abortion services in Northern Ireland.
In March 2020, the Secretary of State wrote to the relevant Northern Ireland Ministers asking them to implement the respective recommendations under paragraphs 85 and 86 of the 2018 United Nations Committee on the Elimination of Discrimination against Women report, an 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.
It has always been our expectation and preference for the Northern Ireland Department of Health to drive forward the commissioning of abortion services, with the relevant legal powers, policy and operational expertise to do so, and to ensure that abortion becomes normalised and embedded as a healthcare service into the health and social care system in Northern Ireland. Over the past year, the Northern Ireland Office has continued to work closely with the Department of Health and other relevant Northern Ireland Departments, trying to progress that work.
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, over one year later, women and girls are still unable to access high-quality abortion and post-abortion care locally in Northern Ireland. The commissioning of full abortion services, consistent with the conditions set out in the 2020 regulations, has still not happened.
We have been working since the 2020 regulations came into effect to ensure that the duties under section 9 of the Northern Ireland (Executive Formation etc) Act 2019 can be implemented in full at the earliest opportunity. I recognise that some abortion services have been provided since April 2020, and more than 1,100 abortions have taken place in Northern Ireland, but that falls far short of what is required by law. Services have not been formally commissioned, supported or funded by the Northern Ireland Department of Health, and there has been no guidance issued or official support measures put in place.
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. Throughout the covid-19 pandemic, some women and girls have still been forced to travel to England. I have learned of the distress and the unacceptable circumstances that they continue to face at a time when local access should be readily available, given that the law was changed by this Parliament over a year ago. The ongoing covid situation and limitations on travel make it even more important that local access to services is available, and for the current services to be properly supported by the Department of Health, particularly as women should not be forced to choose to travel or to resort to unsafe or unregulated measures at this time.
The Secretary of State takes his statutory duties very seriously, and recognises that the current impasse is unacceptable. That is why we have made these further regulations. The Abortion (Northern Ireland) Regulations 2021, which came into force on 31 March 2021, will provide the Secretary of State with the power to direct a Northern Ireland Minister, the Northern Ireland Department of Health, the Health and Social Care Board and the Public Health Agency to take the action necessary to implement all the recommendations in paragraphs 85 and 86 of the CEDAW report. I draw the Committee’s attention to the wording of the regulations, which makes it clear that this is also a binding direction on the First Minister and the Deputy First Minister of the Northern Ireland Executive.
We recognise that this is a big step, but it is a crucial one. We have given the Department of Health and the Executive plenty of time to move forward, and we have engaged extensively to see how we could best support delivery, but those efforts have not so far given us results. I have already begun engaging with Minister Swann and his Department again, and I have communicated to him that the Secretary of State is clear that the Department of Health must take concrete steps towards the commissioning of abortion services in Northern Ireland in advance of the summer recess. I have asked my officials to work closely with the Department of Health to ensure that urgent progress is made on this issue. I would welcome the Executive’s considering a full proposal for commissioning, but we need to see movement coming forward. The Secretary of State stands ready, if we do not see significant progress before the summer recess, to issue the direction empowered by these regulations.
We recognise that this is a sensitive and personal issue for many people. Indeed, we have heard many differing views across this House, as well as from Members in the Northern Ireland Assembly, in relation to abortion, including in the context of the debates and the reports under the EF Act. However, women should not be forced to choose to travel, or to resort to unsafe and unregulated measures, when the law is in place to ensure that services are in place for Northern Ireland.
Although I recognise the range of passionately held views on this issue, support for the new regulations is clearly evident. The all-party parliamentary group on sexual and reproductive health in the UK, 88 cross-party MPs and 24 representative organisations for the women’s and LGBTQ sector in Northern Ireland have written letters to the Northern Ireland Minister of Health, urging him to take action on the issue.
I place on record my thanks to the medical professionals who have ensured that women and girls have had some access to local abortion services in Northern Ireland to date, and to the organisations that have supported this work, including Informing Choices NI, for providing a pathway to abortion and counselling services, particularly in the current circumstances and amid the wider strains on the health system. I would also like to pay tribute to the late Professor Jim Dornan, a leader in his field and a passionate advocate for health issues such as cancer and women’s reproductive rights.
It is our firm view that the regulations made in 2020 provide a legislative framework that is operationally sound, works best for Northern Ireland and delivers on the Government’s statutory duty. Those regulations were consulted on and sought to meet the requirements of CEDAW in a way that would bring outcomes for women and girls in Northern Ireland into line with the rest of the UK. That is why we do not intend to amend the regulations. We are here today to do everything we can to demonstrate how committed we are to fulfilling the Government’s statutory obligations and ensuring that women and girls in Northern Ireland have access to high-quality abortion and post-abortion care in Northern Ireland, consistent with the conditions set out in the 2020 regulations.
As right hon. and hon. Members will be aware, abortion remains a devolved issue, and the Assembly can seek to amend regulations in a way that remains compliant with convention rights. We recognise the sensitivities of these issues and the concerns from, for instance, those who have suggested that sex selection could be an issue. We take the matter very seriously, but sex selection is not one of the grounds on which abortion is allowed under the 2020 regulations, and we will be clear in guidance that that is the case. We also recognise that this will be an important matter for the Department of Health to consider in the guidance that it produces alongside the full commissioning of services, as well as factors that medical professionals should be looking out for so that they can raise any safeguarding concerns.
I commend these regulations to the Committee.
Sir John Hayes
I would never say that all MPs are completely stupid, as you know, Mr Hosie, but if my hon. Friend does not value as highly as he ought to the 1998 Act and the devolution settlement that arose from the Good Friday agreement, perhaps he will recognise two other pieces of law that are directly pertinent to our considerations.
The first is the 2005 agreement, whereby the devolved constitutional settlement in Northern Ireland established the consent for constitutional change, described as a fundamental principle of devolution. It made clear that in terms of constitutional change it was essential that the Northern Ireland Assembly took a view, and indeed made a decision, that was consistent with anything that this Parliament did. That is the underlying principle of consent in the devolved arrangement.
Moreover—I know my hon. Friend will have read his papers very closely before coming to the Committee—the Delegated Legislation Committee that looked at the matters before us made it very clear that what we are being asked to do today is entirely exceptional in terms of the devolution settlement for Northern Ireland or anywhere else in the United Kingdom. Unprecedented was the word that the Committee that studied the regulations before they came to us used to describe them.
It is unacceptable to argue that because we took a decision when there was no Assembly, now that the Assembly has been re-established, we should ride roughshod over the view that it took and that it takes about the issue. It is inexcusable that the explanatory memorandum should suggest that the new regulations, which are so much wider than the 2020 regulations, should depend on the consultation process for the 2020 regulations, which in any event was sharply criticised as being far too short and deeply controversial.
Having had a deeply controversial and inadequate consultation process for the first regulations, we have now introduced regulations that are more wide ranging and that could, as my hon. Friend the Member for Penistone and Stocksbridge suggested, lead to—
Sir John Hayes
Before I give way to the Minister, I pay personal tribute to him, because he has been incredibly courteous throughout; I have had many exchanges with him on the matter. I know that his personal views on these matters are not a million miles from mine, but I do not want to embarrass him by saying more than that. The truth is that he knows that with these regulations there is a possibility of us ending up with, rather than a circumstance whereby the availability of abortion in Northern Ireland is equivalent to that in the other parts of the United Kingdom, a circumstance, as my hon. Friend the Member for Penistone and Stocksbridge said, whereby abortion in Northern Ireland is offered more permissively than elsewhere. Perhaps he can correct me.
Mr Walker
I am very happy to correct my right hon. Friend on that point. I am certainly happy that we have had constructive engagement, and I hope that all Members on both sides of the House, and on both sides of the debate, will recognise the willingness to engage on these issues.
May I come back to my right hon. Friend’s suggestion that today’s regulations are wider in some way than the 2020 regulations? This is simply about the implementation of the 2020 regulations. Today’s regulations make no change whatever to them; they are simply about ensuring that what the House put into law in 2020 is delivered.
Sir John Hayes
The Minister says that, but it is clear from reading the regulations that, in certain circumstances, abortion can take place up to birth and that the 1967 Act’s insistence on two medical practitioners authorising abortion will not necessarily apply in Northern Ireland. I regard both those things as a more permissive application of the law than the one that pertains.
The 1967 Act may well be applied in theory more than in practice—I should not want to comment on that—but at the very least the risk of the more permissive regime that my hon. Friend the Member for Penistone and Stocksbridge described concerns the people of Northern Ireland, who fear that what is imposed on them might not only go against the expressed will of the people, but be altogether worse than that.
The hon. Member for Walthamstow made it perfectly clear that the essence of the argument used when the law was passed was that as there was no Assembly we had to act. She argued:
“I understand that, if it was not for the fact that we do not have an Assembly, this would absolutely not be the right way forward”.—[Official Report, 9 July 2019; Vol. 663, c. 183.]
That is what she said, with not a great deal of elegance; none the less, her point is made: it would absolutely “not be the right way forward.”
If it was “not the right way forward”, why on earth have we continued to pursue this path? When the Assembly was reformed, with a new Government, we had an opportunity to think again. It would not have been a huge step, given that the Assembly had the chance to vote on the matter. It has all the appearance of the Government dictating their will and of Parliament insisting that devolution counts only when the devolved Assemblies agree with people here. That is not something that you, Mr Hosie, I nor any democrat in this place could possibly sanction.
We must think too about the consequences for the Union and the continuing pertinence and relevance of devolution. If people in Northern Ireland come to believe what I have suggested—that their right to self-government is condoned by a Parliament that is so arrogant that it says that when they do not agree with the prevailing view here their rights can be torn away from them—how can they possibly continue to believe in the settlement or, indeed, even in the Union?
I was recently contacted by a clergyman from County Fermanagh, who decried the regulations as the final nail in the coffin of devolution. Indeed, an open letter was sent to the Prime Minister from 250 church leaders opposing today’s proposals. On at least four occasions, we have actively ignored the expressed will of Northern Ireland’s representatives on a matter of great importance to many in the Province. First, as has been noted, on 19 July 100% of Northern Ireland Members who take their seats voted against the process that resulted in section 9—a Northern Ireland-only provision on a devolved matter. Let me repeat that: a Northern Ireland-only provision on a devolved matter—a matter expressly devolved to Northern Ireland, yet it was imposed despite that opposition from Members who hold a specific mandate to represent the people there. At that moment we told the people of Northern Ireland that the voices of those elected to represent them would be ignored, and their history and deeply held views on this matter of conscience disregarded. By extension, we told the people of Northern Ireland that their opinion did not matter.
Secondly, we ignored the voice of the people of Northern Ireland in the consultation on the 2020 regulations, in which 79% of participants said they did not want the measure to proceed—seventy-nine per cent. is an even greater percentage than I managed to secure of the vote in South Holland and The Deepings—not much greater, but somewhat.
Thirdly, we ignored the voices of the people of Northern Ireland when we insisted on welcoming the restoration of the Northern Ireland Assembly while simultaneously ignoring its clear vote last year to reject the 2020 regulations. We now seek to forsake them again by forgoing further public consultation on the new regulations, at a time when the Assembly is working as intended, providing extensive and conscientious scrutiny of an imposed policy of the utmost sensitivity and profound local concern.
Mr Walker
Thank you, Mr Hosie, for your patient chairmanship of the Committee.
We have heard a wide range of strongly held personal views and varied contributions on all aspects of the regulations from Members representing all parties. I thank the hon. Member for Pontypridd, who speaks for the Opposition, for her constructive approach to the debate and our previous engagement on the issue. I particularly commend the speeches of my right hon. Friend the Member for Basingstoke; the right hon. Member for Kingston upon Hull North, who has spoken passionately on the issue for a long time; my hon. Friend the Member for Bexhill and Battle; and the hon. Member for Bristol South, who used to face me across the Committee.
My closing remarks will address several of the points made during the debate. I recognise the strength of the speeches of the hon. Member for Upper Bann, my hon. Friend the Member for Penistone and Stockbridge, and my right hon. Friend the Member for South Holland and The Deepings, who is never knowingly understated, but who, as ever, spoke powerfully.
While some people might wish to use the opportunity to reopen the discussion on the framework established by the 2020 regulations, as my right hon. Friend the Member for South Holland and The Deepings did for a large part of his speech, that time has passed and we are focused on ensuring that the legal right of women and girls to access full abortion services in Northern Ireland is implemented. Let me be absolutely clear that we are not proposing to repeal section 9 of the EF Act. Although we have heard in the debate from some who would like to do that, they are in a small minority in the House and in the Conservative party. As my hon. Friend the Member for Bexhill and Battle pointed out, there was a five to one majority in favour of the Act, as amended. It remains our preference that, this now being the law of the United Kingdom, the Department of Health should drive forward the commissioning of abortion services, with the support of the Executive, and we will continue to work to see whether progress can be made on the ground in Northern Ireland before the Secretary of State has to consider issuing a direction.
We all recognise that abortion is a hugely emotive subject, but we must not lose sight of the women and girls in Northern Ireland who are at the heart of the matter. It is unacceptable that there are women and girls in any part of the United Kingdom who cannot access these fundamental rights. That is a decision that was taken by the House of Commons in enacting the previous regulations and the EF Act. Even though the law was changed 12 months ago, services have still not been commissioned in full, leaving many women and girls in vulnerable situations.
My right hon. Friend the Member for Basingstoke made clear the concerns of health professionals at the lack of commissioning. I thank the Northern Ireland abortion and contraception taskforce for its report. The CEDAW report and its recommendations require that evidence-based protocols are adopted in the provision of services in Northern Ireland. The Royal College of Obstetricians and Gynaecologists has also published guidance to help medical professionals. I strongly urge the Department of Health to engage with both groups on the practical issues outlined in their reports.
I have spoken personally to many women and healthcare professionals in Northern Ireland, and some of their experiences are truly harrowing. Many women and girls still have to travel to other parts of the United Kingdom to access the care that should be available to them. One story of which I was informed was of a wanted pregnancy where, sadly, doctors told the mother that the baby would not survive outside the womb. The woman had to travel to London without a network of family support in order to access abortion care. She described to me a harrowing ordeal—unable to travel back on a flight home because of complications with bleeding, stranded in London, alone, grieving and in pain. I have also been made aware that two women have attempted suicide in the past year after their flights were cancelled and they were unable to travel to England.
The distress and the circumstances that women and girls continue to face when local access should be readily available, given that the law changed over a year ago, are unacceptable. It is only right that women and girls in Northern Ireland can make individual, informed decisions with proper patient care and provision of information, and with support from medical professionals, based on their own health and other circumstances—similar to women and girls living elsewhere in the UK.
The right hon. Member for Kingston upon Hull North made an important point about funding for voluntary services. I have made it clear that we would expect to see that in place before the summer recess so that we can avoid the use of a direction. We want the Executive to move forward on it.
We have heard understandable concerns about respecting the importance of the devolved institutions. I have been clear repeatedly about our desire to work with the Executive, the Department of Health and the Assembly to ensure that the regulations are implemented effectively in a way that works for Northern Ireland, but, after more than a year, it has become clear that without further steps being taken, that would not happen. Even at this stage, we do not wish to have to use the power of direction and we will pause, following the conclusion of the Committee, to give the Department of Health another opportunity to implement the regulations. If we see real evidence of commissioning of a CEDAW-compliant regime, and support for the provision of advice and guidance ahead of the summer, there is no reason a direction should be required. If we do not, we will have no choice other than to meet our legal obligations.
We have already given the Executive and the Department of Health a year to move forward with commissioning services, following the abortion regulations coming into effect last March, and we are disappointed that no progress has been made. We continue to give the Executive, the Minister of Health and his Department further time to move forward on their own terms. Should the Committee approve the regulations on the power of direction, we will pause and give them one final opportunity to make progress on commissioning services. However, we will not let progress be drawn out indefinitely.
We want to see concrete progress towards the commissioning of abortion services before the summer recess. If that is not achieved, we will not hesitate to issue a direction immediately so that the rights of women and girls are properly upheld, and they can have safe and lawful access to abortion services in Northern Ireland.
I have been asked to estimate the number of people who have had to travel. I note that over 1,100 women and girls have been able to access local services since April last year. That should not be overlooked when services have not been formally commissioned. We have seen a significant reduction in the number of women and girls having to travel over the past nine to 12 months, and we appreciate that, while covid has played a part in that, the change to the law in Northern Ireland and local access have also been key.
We expect that the Department of Health and Social Care will publish the figures for people who have had to travel as standard practice over the coming months. Tempting though it is, I do not wish to estimate—I want the figures. We know that the number is significantly lower than before, but any number at this stage is too many.
Karin Smyth
I appreciate the difficulty, but that is really disappointing. Coming out of the pandemic, flights are beginning to be scheduled, but they are getting more expensive, and it will be more difficult for women to travel as families try to reunite across these islands and society begins to reopen. It will be another four to five months—between now and some point in the summer, if something happens—with really difficult travelling circumstances and more women in distress. Is that date as much as we can get from the Minister today?
Mr Walker
I recognise the strength of the hon. Lady’s feelings and the fact that she is pushing for the most rapid delivery. It is our preference that the Executive and the Minister of Health move forward with this at once, and that they act on what is already in place so that the requirement to travel can be removed as soon as possible. We want to give the Executive every opportunity to do this themselves without being directed, so there will be a pause.
My right hon. Friend the Member for Basingstoke made an important point about education. She is right that the CEDAW report’s requirements, the regulations and the EF Act require us to go beyond the area of health. Sexual and reproductive health education is an important component in ensuring that women and girls are well informed of the choices available to them. One of the recommendations in the CEDAW report, which we must ensure is implemented, is to make age-appropriate, comprehensive and scientifically accurate education on sexual and reproductive health and rights a compulsory component of the curriculum for adolescents, covering the prevention of early pregnancy and access to abortion, and to monitor its implementation.
The implementation of that recommendation falls into an area for which Northern Ireland’s Department of Education has responsibility. We have written to the Minister and continue to work with the Department to ensure appropriate implementation in Northern Ireland, but I would point out that the Northern Ireland Human Rights Commission, as part of its work for this year and in accordance with that recommendation, will publish a report on the provision of education services in Northern Ireland.
The right hon. Member for Kingston upon Hull North asked about telemedicine. As she will recognise, the temporary approval made in England under the abortion legislation Act cannot be extended to Northern Ireland, but the power was placed in legislation to enable the Northern Ireland Minister of Health to consider other appropriate settings. In this jurisdiction, during the covid situation, that power has been used under UK legislation. I have certainly urged the Minister to consider that, but it needs to be looked at as part of the wider package of the Executive and the Department of Health accepting their responsibilities for this and using the powers available to them.
My right hon. Friend the Member for South Holland and The Deepings mentioned the Constitution Committee. I recognise that, to some extent, we are in unprecedented territory, but I agree with the Committee’s conclusion that the UK Government and the Northern Ireland Executive should engage in a constructive manner. The Secretary of State is under a clear legal duty under section 9 of the EF Act to ensure that all the CEDAW recommendations are implemented in Northern Ireland—a duty that was placed on him by the House of Commons. However, we have been repeatedly clear about our desire to work with the Executive, the Department of Health and the Assembly to ensure that the regulations are implemented effectively in a way that works for Northern Ireland. It remains our preference for them to deliver on that and to move forward with the full commissioning of services in line with the regulations. That is why we are giving them every opportunity to act on the matter.
I conclude by saying that I have no desire to be here today. Like the hon. Member for Bristol South, I cannot believe that we are here again. The House set out the law and delivered a single compliant set of regulations for Northern Ireland over a year ago. At every stage, we have sought to get those regulations delivered through the proper devolved channels, and the power that the regulations will grant provides a mechanism to unblock the political obstacles that have been placed in the way of their delivery. I therefore commend the regulations to the Committee.
Question put,