Northern Ireland (Executive Formation and Exercise of Functions) Bill

Baroness Barker Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Alton of Liverpool (CB)]

I do not know whether the noble Lord was present earlier to hear the noble Baroness, Lady Stroud, challenge the poll to which he referred. I draw his attention to the ComRes poll that was carried out only last week in Northern Ireland. It found that 64% of the general population and 66% of women in Northern Ireland agreed that changing the law on this issue should be a decision for the people of Northern Ireland and their elected representatives. It also found that 70% of 18 to 30 year-olds agreed that Westminster should not dictate that change to them.

[Baroness Barker (LD)]

Will the noble Lord, Lord Alton, say who commissioned the poll from ComRes and make available the questions so that the House can see them?

--- Later in debate ---

[Lord Browne of Belmont (DUP)]

My Lords, I have listened very carefully to the wise words spoken by the noble and learned Lord, Lord Mackay, so I very much welcome Amendment 16. I want to say a few words about Clause 4. The architects of Clause 4 in the other place were very clever, and I pay tribute to their ingenuity. The word “functions” is dropped into Clause 4 in an attempt to make it fit, but it is no more than a fig leaf. Clause 4 is not about functions; it is about policy. This is not the appropriate legislative vehicle for this clause, touching as it does on sensitive issues that are highly controversial, particularly in Northern Ireland.

Regardless of our views on abortion and marriage—and there is a divergence of views right across this House—we can surely agree that they are issues deserving of proper attention and debate. A clause of this kind in a Bill of this kind does not provide that opportunity. What we have here, I rather suspect, is an attempt to change the law through guidance. It cannot work—any change would require legislation—but it is seeking to influence key devolved policy matters that should be decided by a Northern Ireland Executive and Assembly. It is proper for those matters to be dealt with by the devolved institutions. Northern Ireland is the most recent part of the UK to vote on abortion law. In 2016 a clear majority of Assembly Members voted to retain the current law. We should be very wary of undermining devolution, or being seen to undermine it. There is a risk that this clause creates a dangerous precedent for interference that could have wider consequences for our constitutional arrangements. Clause 4 is inappropriate, poorly drafted and should have no place in this Bill.

[Baroness Barker]

The noble Baroness, Lady O’Loan, and the noble Lord, Lord Alton, have repeatedly said that there is no right to abortion, but your Lordships will know that time and again international courts and the UN have agreed that access to abortion is a right under Article 8. There are many rights that are not set out specifically in the convention, but the right to privacy and the right to family life are inextricably linked to control over one’s body and reproductive rights.

Therefore, I ask your Lordships to vote against the amendment of the noble and learned Lord, Lord Mackay, if it is put a vote, which I hope it is not. It inserts a reference to Section 6 of the Human Rights Act, and that is designed to constrain what the Secretary of State for Northern Ireland could include in guidance. That would be most likely used to declare that the current criminalisation of women who end their own pregnancies in Northern Ireland is acceptable under human rights law, because it is as a result of one or more of the provisions of primary legislation and the authority could not have acted differently. Specifically mentioning Section 6 of the Human Rights Act could require that guidance be issued that knowingly contravenes Article 8 of the European Convention on Human Rights—the right to privacy and family life. There have been many mentions of the court case in June, and we know that there will be a case before the Supreme Court later this year. It is important, therefore, that the guidance issued in Northern Ireland is sufficiently up to date to ensure that the men and women of Northern Ireland do not lose the access to human rights that the rest of us have.

This is a wrecking amendment, it would overturn the decision made by a majority in another place, and I hope therefore that all noble Lords will resist the amendment of the noble and learned Lord this evening.

[Baroness Smith of Basildon]

My Lords, I had not expected to be on so soon. Many of us in the Labour Party have some form on debating Clause 4. I am nothing if not consistent: I want to keep Clause 4. It is worth reminding ourselves what Clause 4, which was voted into the Bill by a cross-party majority of almost 100 in the House of Commons, says. It came on the back of a decision by the Supreme Court in June that Northern Ireland abortion law was “untenable and intrinsically disproportionate” in relation to rape and incest, which are criminal matters, and fatal foetal abnormality. The House of Commons looked at this issue within the confines and context of the Bill and also at gay marriage, which is possible in the rest of the UK as a result of a law passed in your Lordships’ House.

Noble Lords have rightly said that Clause 4 does not change the law but states that, in the absence of a Northern Ireland Executive to scrutinise the impact of laws on abortion and same-sex marriage in Northern Ireland and, specifically, their incompatibility with the UK’s human rights obligations, the Secretary of State for Northern Ireland is required to provide clear guidance to Northern Ireland civil servants on the operation of these laws, and to update the House each quarter on how she plans to address the laws’ impact on the UK’s human rights obligations. This is exactly what has been agreed by the House of Commons by a large majority.

I understand why the noble and learned Lord, Lord Mackay, and the noble Baroness, Lady O’Loan, have brought forward this amendment. It recognises that the existing law may contravene the European Convention on Human Rights but then says that the Secretary of State can do nothing about it. That does not seem to be a position which your Lordships’ House would want to be in. Like my noble friend Lord Cashman, I understand the sentiments and principles behind the amendment in the name of my noble friend Lord Adonis. We think alike on these issues. I struggle with the concept of issuing guidance to civil servants not to enforce legislation. Guidance is not the way to do it, and that is why the House of Common has taken the approach that it has.

All noble Lords understand that these issues evoke emotional responses. They are difficult, personal issues, which is why this is a matter of conscience and there is a free vote in both Houses of Parliament. The House of Commons sought a way forward which is both proportionate and within the terms of this legislation. As I said once before within my own party: I urge your Lordships’ House to protect Clause 4.

Voyeurism (Offences) (No. 2) Bill

Baroness Barker Excerpts

2nd reading (Hansard): House of Lords
Tuesday 23rd October 2018 Lords Chamber

[Baroness Barker (LD)]

My Lords, I thank the noble and learned Lord, Lord Keen of Elie, for the clear way in which he introduced this legislation. I too congratulate my colleague in another place, Wera Hobhouse, on taking the opportunity to legislate on an offence which is at the moment rarely prosecuted—yet the behaviour seems to be growing. She has given us the opportunity to put together legislation which, if we get it right, will create a deterrent. That will be an important thing for us to do.

Before turning to the specifics of the Bill, I want to commend the Government for taking up this matter when Wera Hobhouse’s Bill was hijacked in another place. I simply make this observation: by their nature, Private Members’ Bills often deal with matters which are of high significance to very few people. There is a group of Conservative MPs, mostly white men, who take pride in shooting down Private Members’ Bills like some Friday morning sport. That is nasty. The Prime Minister’s swift response is welcome but it really should not be necessary.

I have been discussing this Bill in my office, like many other Members of your Lordships’ House, I imagine—particularly the women Members. My noble friend Lady Hamwee told me that she remembered being shocked while she was a student at Girton, which is three miles outside Cambridge, when female students were warned that someone who was giving lifts to hitchhikers was using a mirror on his car floor to look up the skirts of passengers. There are many reasons not to hitchhike but that was another one, so this is not a new issue. It is just that the role of technology has made a qualitative difference. Today, this crime has the potential to cause much greater harm to victims because images can be taken more easily and shared more widely than in the past. That compounds the violation of privacy that takes place at first. The points made by my noble friend Lady Burt on behalf of Women’s Aid were striking and to the point.

This is not a political Bill; we all share the ambition to draw up legislation which offers the greatest possible deterrence. Within that, I think it is agreed that we need legislation which is sufficiently robust in the punishments it includes but also has the flexibility to enable law enforcement agencies and so on to make it work in practice. The Bill comes to your Lordships’ House having been debated in another place under its Public Bill Committee procedure. If only for the ease of reading its discussions in Hansard, I prefer the way that is done in another place. I found it very helpful to hear people such as Gina Martin, who was a victim of this vile behaviour, set out in some detail the reasons why she and her legal team came up with their draft legislation, and the assumptions that they put behind it. That having been done, your Lordships will have the opportunity to test during our deliberations whether the definition—the technical specification—of this offence of voyeurism, as set out in Clause 1(2), is, first, sufficiently comprehensive now and, secondly, whether it will stand the test of time. We live in an age when technology changes very rapidly.

In the Public Bill Committee, it was also helpful to understand the context in which the Bill sits and the work of the Law Commission in looking at changes to definitions of hate crime, but particularly to understand the difference between this Bill and the Bill on revenge porn. I was involved in a minor way in the passage of the revenge porn legislation, along with my noble friend Lord Marks. It was interesting to read that victims of that offence do not have a right to anonymity whereas this offence will be a sexual offence and therefore victims will have an automatic right to anonymity. It is somewhat difficult for some of us who are not lawyers to understand quite why two offences which appear to be very similar in perpetration and effect should be treated so differently. Revenge pornography was made an offence in 2014 and about 500 cases a year are successfully prosecuted but hundreds more are not. I am sure the Minister will explain to us why that is not a sexual offence but upskirting will, under the Bill before us, be a sexual offence. Given the difference, I hope that over the coming years the Government will pay close attention to the rates of charges and successful prosecutions which are brought under the different pieces of legislation to see whether there is evidence for anonymity for victims.

I too was interested in the words of Lisa Hallgarten, the head of policy and public affairs at Brook. A lot of what she had to say was about the way young people are unsure about their right to privacy and about what invasion of privacy is and the implications of that not only for prosecutions under the Bill but for schools when handling instances that may happen. Teaching young women what their rights to privacy are and young men what constitutes an invasion of privacy is important.

This Bill comes to us today when the Women and Equalities Committee has produced its report on sexual harassment. It said:

“Laws alone cannot address the cultural acceptability of sexual harassment, most of which is unreported, but they have an important part to play, including in responding to new forms of public sexual harassment facilitated by technology. We welcome legislation on ‘upskirting’ and ‘revenge porn’, but at present, the Government is too often racing to catch up with these developments”.


I congratulate the Government on taking one more step and I hope we will make this legislation get to the statute book with some alacrity so that fewer women are victims of this horrible crime.

Northern Ireland: Misoprostol

Baroness Barker Excerpts

Wednesday 5th September 2018 Lords Chamber

[Lord Duncan of Springbank]

The noble Baroness makes an important point. We in England are making significant progress with regard to Misoprostol, but the reality remains that Northern Ireland has a number of challenges, all of which require a full and sustainable Executive to be in place. The last time that wider questions on abortion were discussed, only a few years ago, the diversity of opinion within the Assembly was significant. It is right and proper that these matters be addressed by the elected representatives of Northern Ireland. That is why my right honourable friend the Secretary of State for Northern Ireland is working tirelessly to bring about a restored Executive.

[Baroness Barker (LD)]

Is the Minister aware that on Monday Belfast City Council, which has members from seven political parties, voted for the decriminalisation of abortion in Northern Ireland? Notwithstanding his remarks, does he understand that there is a growing desire to see abortion decriminalised in Northern Ireland, and that at the moment there is no way for that political will to be fulfilled?

[Lord Duncan of Springbank]

I am fully aware of the opinions that are being expressed in Northern Ireland, not just on abortion but on a range of issues. If only we could see such a unity of purpose and opinion across all the parties in Northern Ireland now, it would bring about a restored Executive and we could see significant progress on this matter made by the right group of individuals—namely, those democratically elected by the people of the Province. That is the ultimate sensible and sure way of bringing about policies that have the endorsement of the wider population.

Brexit: Human Rights

Baroness Barker Excerpts

Tuesday 12th December 2017 Lords Chamber

[Baroness Barker (LD)]

My Lords, I, too, thank the noble Lord, Lord Cashman. Many of my colleagues wanted to speak, but because there was so little time they gave their time to the rest of us.

In preparing for tonight’s debate, I remembered that next year it will be 30 years since people abseiled into this place to oppose the hateful and hated Section 28. Perhaps the noble Lord, Lord Faulks, has more faith in our courts than I do, but, as a member of a minority group, I have to say that over the last 30 years many of the rights that I have come to enjoy have come from decisions of European courts that were fought tooth and nail by Parliament and courts in this country. I am afraid that I agree rather more with the noble Baroness, Lady Warsi, in her somewhat downbeat assessment of what the position is likely to be post the abandonment of the international standards of human rights to which we have subscribed for so long.

I have very little time available to me but I, too, have a list. I want to ask the noble and learned Lord, Lord Keen of Elie, a number of questions. He may not be able to answer them now but I hope that he will do so in writing. Is equality before the law, as guaranteed in Article 20 of the EU Charter of Fundamental Rights, an enforceable right in UK law? If it is guaranteed by common law, does it apply across the entire United Kingdom and can that right be removed or limited by statute? How will Her Majesty’s Government ensure that the same level of protection is available in the light of Brexit?

Article 21(1) of the Charter of Fundamental Rights expressly protects against discrimination based on sexual orientation in UK law. Will the Government identify where protection against discrimination is recognised as a human right in the UK and where that right is expressly recognised in UK law as an enforceable right? Again, how will the Government ensure the same level of protection in the event of Brexit?

In international law, the UK is bound by its human rights treaty obligations at the UN and the Council of Europe. Do these treaty obligations expressly protect against discrimination on the basis of sexual orientation? Are the other protected grounds in Article 21(1) of the Charter of Fundamental Rights fully covered by the UK’s wider international human rights treaty obligations? If so, how? The EU charter provides extensive protection from discrimination on the grounds of sex, including in its Articles 21, 23 and 33. In the absence of the charter, can the Government confirm that these rights are fully protected under UK law and, if they are, how does UK law give effect to those rights? How will there be the same level of protection in the event of Brexit? Can the noble and learned Lord also confirm that all references to sex in the Charter of Fundamental Rights include people who are trans?

That is a long list of very dry, boring and technical questions. However, they are of the utmost importance to every member of a minority population in this country. Until such time as the Government come forward with detailed answers to those questions, they have to understand that some of us live in fear that the rights that were so hard won over the last 30 years are going to disappear. I say to the young people I meet in my community, “Talk of human rights is very boring and very dry, but it is absolutely the bedrock of our right to live with decency and equality alongside everybody else in society”. So I look forward very much to hearing some dry and technical answers.

Assisted Dying

Baroness Barker Excerpts

Monday 6th March 2017 Lords Chamber

[Baroness Barker (LD)]

My Lords, the current legislative framework governing medically assisted dying is failing to protect patients, vulnerable people and medical professionals. Therefore, we on these Benches have a policy that in cases of terminal illness or severe, incurable and progressive physical illness where patients are without hope of recovery, medical doctors should legally be able to provide competent adults with assistance to die if they have expressed the wish to do so, within narrowly defined circumstances. That assistance should be strictly limited to qualifying people who are able to demonstrate, to the satisfaction of a doctor with detailed knowledge of their illness, as well as an independent specialist, that their request to die is voluntary, well considered, persistent and motivated by existing or inevitable unbearable suffering.

Requests for medical assistance to die must be made in writing, after a full discussion with each of the doctors about the situation, prospects and options for palliative care. They must also be countersigned by a practising solicitor who has been satisfied that the patient qualifies and that all procedures have been followed. The law should protect the right of medical and legal practitioners not to participate in the process of assisting a patient to die, but they must make a referral. For those reasons we support the noble Baroness, Lady Jay, in her call to take the growing evidence base from America.