Northern Ireland (Executive Formation etc) Act 2019: Section 3(5)

Baroness O'Loan Excerpts

Thursday 17th October 2019 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I will talk about abortion and the return of the Assembly. It is really important that we remember why we are debating this provision; it is because of the recommendations of the report produced by the CEDAW committee, which were deemed to be so imperative because of concern for women’s rights in Northern Ireland. When moving the provision that became Section 9, the honourable Member for Walthamstow in another place said that she wanted women in Northern Ireland to have the same rights as women in England and Wales.

We need to keep this in mind as we consider the Secretary of State’s report and what it says about the period between 22 October 2019 and 31 March 2020 if regulations are not laid before then. The report acknowledges that during this period the law will not be quite all that it should be and seeks to deal with that problem by saying that,

“there are no plans for additional services to be routinely available before 31 March”.

That is a curious statement. It seems to be predicated on the thoughts that if additional abortion services were made available they would be provided by the government -controlled National Health Service, and that the Government can prevent abortions being provided in the new legal void by simply instructing the NHS not to provide them.

There is a huge problem with that approach, which the noble Lord, Lord Morrow, and the noble and learned Lord, Lord Mackay, have referred to: that the NHS will not be the only body which will be able to provide abortions lawfully during this period. Unless the Assembly is restored, Sections 58 and 59 of the Offences against the Person Act will be repealed and only two laws engaging with abortion in Northern Ireland will remain. Under the Criminal Justice Act (Northern Ireland) 1945, as noble Lords have heard, abortions cannot take place lawfully from the time at which a child is capable of being born alive. The presumption in the Criminal Justice Act is that that is 28 weeks, but we know that babies now routinely survive at 22 weeks. It means that there will be a legislative void regarding abortions until that point.

Abortion procedures are dangerous, so responsible governance provides legislation regulating how they should be provided. In England, for example, every private abortion clinic must have a licence. The licence is not a generic clinic licence but a specific abortion clinic licence, and clinics have to perform to required operating standard procedures. Under Regulation 20 of the Care Quality Commission (Registration) Regulations 2009 there are requirements relating to the termination of pregnancies, including an obligation to ensure that two medical opinions are provided before an abortion is carried out, a restriction on who can carry out abortions after twenty weeks, because of the risks, and a requirement for detailed records to be kept.

The English legislation very properly recognises that the procedure of abortion requires abortion-specific regulation of both the premises and the procedure. In addition, under the Health and Social Care Act 2008 and associated regulations, any person who offers or undertakes abortion carries out a “regulated activity” and has to be registered with the CQC. Subject to limited exceptions, it is a criminal offence to carry out a regulated activity unless you are registered for the provision of that activity. So in England the practitioner, the location and the process are all subject to regulation. None of this regulation, designed to protect women and their unborn children, will apply to private abortion clinics in Northern Ireland which, unless the Assembly is restored, will be free to operate until regulations are laid.

From Tuesday, any provider of medical abortion services by a doctor at an independent clinic has to be registered under the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003. If it is registered, the clinic will be inspected and its services will be quality assured, but only as generic clinic services. No specific reference is made to standards for abortion. Moreover, this is the real danger: if the regulations say that if one medical professional who works for the National Health Service works in the clinic, it does not have to be regulated or assessed by the RQIA, so there is lots of scope for private abortion clinics employing one registered medical practitioner working for the NHS not to be subject to any regulation at all. Even worse, there will be no prohibition on anyone without medical qualifications providing abortion services in any context, and no prohibition on women accessing abortion as long as they give consent. I have to remind noble Lords that if there is a challenge as to whether a woman has given consent, it can be determined only after the event.

As the noble Lord, Lord Morrow, and the noble and learned Lord, Lord Mackay, referred to, we have seen legal opinions on the law in this area. David Lock, an eminent lawyer in the field of NHS and medical legislation and a former Labour MP, has written this:

“A person who was not a doctor (whether a nurse, other clinical professional or with no qualifications) who provides abortion services outside any form of clinic, agency or establishment does appear to not need to be registered under the 2003 Order. Further, there does not appear to be any other regulatory regime that will apply to such a person or any law which means that such a person will necessarily be acting unlawfully”.


He concedes that other criminal offences may be committed depending on the precise facts. He also says:

“In general, under the common law it is lawful to do anything unless there is a specific legal prohibition against doing that thing. Thus an individual is entitled to carry out any form of activity unless the activity is regulated by law and the regulatory framework imposes restrictions on the way in which the activity can be undertaken”.


There will be no such regulation and no framework for Northern Ireland until we see what the regulations say, possibly as late as 31 March 2020. David Lock goes on to say:

“It follows that an unintended consequence of section 9 of the 2019 Act may be the possible return of unregulated ‘backstreet abortion’”.


I know that this was discussed yesterday in the other place and I heard the Minister, but I think that the other place was labouring under a misunderstanding about the actual state of the law in Northern Ireland after 22 October if the Assembly and Executive are not formed. That is why I have set out the law as clearly as I can. This point was also raised last month by the Northern Ireland Human Rights Commission when it referred to the fact that the,

“likelihood of individuals resorting to potentially unsafe practices remains while prosecutions under the criminal law have been removed and the healthcare process has not been established”.

If even one mother or one baby suffers as a consequence of this legislative void, this Parliament will be responsible, as will be those who do not return to the Assembly. That is a very sombre thought.

In addition, the new guidelines issued by the Secretary of State state that,

“there is no expectation that general practitioners (GPs) will prescribe medication for early medical abortion”.

Such medication should be taken only up to nine weeks and six days of pregnancy. In England and Wales, this medication is available from private services because GPs do not provide abortion services. David Lock QC has also advised that,

“there is no legal bar on a GP issuing a prescription for medication for an abortion (either privately or as part of NHS funded care). These are ‘prescription only medicines’ which a GP would be fully entitled to prescribe for his or her patient if the GP considered that it was clinically appropriate to do so”.

So there will be no legal bar on women asking GPs for medication. The Government’s expectation therefore seems irrelevant.

What then of the rights of conscientious objection, which are required to give effect to the protection of human rights of medical practitioners? A couple of weeks ago, over 800 healthcare professionals wrote to the Secretary of State to oppose the imposition of this new regime, saying,

“our consciences demand that we not be silent”.

The medics say that they,

“wish to make known our opposition to the imminent introduction of abortion in Northern Ireland”,

and that their,

“concern throughout is for pregnant mothers and their unborn children”.

The only reference to conscience in the recent report by the Secretary of State is that current UK law permits conscientious objection only in “hands-on situations”. This is entirely inadequate—there is no legal definition of hands-on situations. However, it is also inadequate to suggest, as the report does, that medical practitioners should consult the GMC and other professional bodies. The reality is that that does not provide any guidance to medical practitioners during the lacuna period from 22 October. Of course, it is not possible to provide such guidance in the absence of regulation. The UK professional guidance is predicated upon compliance with existing law. That law does not apply here.

As the noble Lord, Lord Morrow, said, the situation is entirely unnecessary; government could have behaved entirely differently. When Back-Benchers come up with proposals that have dangerous unintended consequences —I am absolutely sure that neither the Minister here, the Secretary of State nor anybody else intended that this situation would prevail—it is the job of departments and Ministers to point out those dangerous unintended consequences. It is also their job to point out that the dangers can be avoided with a proper understanding of the imperative—or lack of it, as I would argue—attached to the findings of the UN committees. Government should have insisted that our existing legislation should not be repealed until such a time as there was new legislation to take its place.

With that in mind, I introduced my Northern Ireland (Executive Formation etc) Act 2019 (Amendment) Bill the day after the Act received Royal Assent to change the date of the repeal of Sections 58 and 59 to the time when the new regulations are introduced, thereby doing away with this dangerous five-month period, and seeking the consent of a majority of MLAs to any new proposed regulations tabled under the Act. In this sorry, sad, dangerous situation, the Secretary of State must do everything he can between now and Monday to get the Assembly Executive up and running by Monday. The political parties in Northern Ireland are under an even greater obligation to do so.

As we speak, some 26,100 people have signed my petition to the Secretary of State and to MLAs calling for the recall of the Northern Ireland Assembly and for it to become operational. A petition by unionist MLAs has been laid for the recall of the Assembly on Monday, as the noble Lord, Lord Morrow, informed the House. The Assembly will now be recalled on Monday and for the first time in over 1,000 days, at this time of extreme urgency—not just because of the abortion provisions but because of Brexit and all the other things that affect Northern Ireland so terribly—the Assembly will gather. There are people who say this is a political stunt, but the people of Northern Ireland have been calling for the Assembly to reconvene for years. This is no political stunt. As I said in my letter to the Secretary of State on Monday:

“We need our own legislature to deal with matters relating to Brexit, to all the numerous and urgent problems which exist in Northern Ireland, and most of all to deal with the difficulty of the situation with regard to abortion if the assembly and executive are not reformed”.


I appeal to all those who do not share my views on this matter to study the David Lock and Ian Wise opinions to which the noble Lord, Lord Morrow, referred, and to recognise the hazards to the safety of women and their unborn children, of which I have spoken tonight, and so to restore the Executive. An opinion poll just released by LucidTalk shows that 60% of people in Northern Ireland are concerned about the prospect of unregulated abortion for one day, let alone five months.

I cannot express too strongly the fact that the 26,000-plus people who signed the petition come from all parts, all parties and all communities in Northern Ireland and represent so many nationalities. I have watched the signatures rolling in. I can see the different nations of the world represented among the signatories. I can see people I know and do not know, but because of the way we work in Northern Ireland, I know that they come from all parts of the community.

I say to Northern Ireland’s elected politicians: respond to this opportunity; respond to the call to appoint an Executive and get back into government. I know that only our politicians can do this. We, the people, have waited long enough.

--- Later in debate ---

[Lord Alderdice (LD)]

My Lords, I am grateful for the opportunity to speak briefly in the gap. I declare my interest as a medical graduate from Northern Ireland and formerly a medical practitioner in Northern Ireland.

Lest the House be in any way misled, we should be clear that there is no prospect of the resumption of an Executive at the beginning of next week. The recall of the Assembly has been at the request of unionist Members only and an Executive cannot be formed on that basis. Let us be clear: it is not going to happen.

I refer to the issue of the Ulster University graduate medical school in Derry/Londonderry. I have three brief points. First, let us not forget that the decision to locate the University of Ulster’s main campus at Coleraine is still a sore point for many people in Derry/Londonderry. It was one of the great aggravations of the 1960s and it has not gone away. Whether the Ulster University graduate medical school is established is not a neutral question. It is still a painful question that refers back to the 1960s decision, which was a bad decision.

Secondly, it is not purely an education and health decision, as implied by the report. It is also an economic decision, because one value in having graduate entry for medical students is that it attracts people from other parts of the world who are prepared to come and pay substantial fees. For example, many of the young psychiatrists I see now from the United States of America as part of their training have graduated from Caribbean medical schools and completed their training in the United States. Many Caribbean islands with good medical training facilities, from the University of the West Indies, for example, are able to do very well, so this is an economic question as well.

Thirdly, it is not possible simply to turn on a tap for a medical school. Graduate entry occurs at only one time of the year. If an opportunity for graduates to come in next year or the year after is lost, it will be at least another year or more before there is another opportunity. Since this has been waiting for some time, the kind of academics who were prepared to set up a school will move on if it keeps being delayed. I appeal to the Minister: sadly, in the likelihood that we will not have a devolved Executive, can this issue not be looked at again and pushed for? It is not a matter of dispute in Northern Ireland. People right across the community, even at Queen’s University, want to see this development. Can it not be looked at and implemented soon?

[Baroness O’Loan]

Is the noble Lord aware that nationalists have indicated that they will attend Stormont on Monday. I do not know whether there will be an Executive, but I do know that nationalist politicians will be there and I encourage every politician to be there.

[Lord Alderdice]

I am aware that many may attend. That is not the point. The issues being referred to cannot be decided by the Assembly in the absence of an Executive. Anybody who knows about the politics of Northern Ireland—and the noble Baroness does—knows perfectly well that this is not yet the time for some people to participate in the Executive. That is political reality and it is ill advised for the Chamber to feel that another possibility for next Tuesday is a real one.

--- Later in debate ---

[Lord Duncan of Springbank]

My Lords, I begin where I think we need to begin. Everyone in this House are of the same view that we need to restore an Executive in Northern Ireland. There is no doubt about the importance of that, not just going forward, but for what could have been achieved, which we will never know. However, my right honourable friend the Secretary of State for Northern Ireland has been working tirelessly, and I am pleased that the noble Lord, Lord Murphy, has recognised that. He has been straining every sinew to try to bring the two principal parties and all the other parties together. In response to the question asked by the noble Baroness, Lady Humphreys, we have made and will make every effort to bring the five parties together to move that forward.

The challenge, however, is that the obligations of the Northern Ireland (Executive Formation etc) Act fall on the shoulders of the United Kingdom Government early next week. While the Assembly may seek to convene—I do not doubt it will do so—and while I do not doubt that there may be a broader base of attendance than might have been expected, it is unlikely to be able to deliver on those issues that some noble Lords have wished it to do this evening for the reasons raised by my noble friend Lord Caine and the noble Lord, Lord Alderdice.

I say that with some regret because we all recognise the value of that. As has been pointed out by the noble Lord, Lord Murphy, this is a time when we would have valued that information. But I do not believe that, unless we make some serious progress on Monday, we will face anything other than the reality that the United Kingdom Government will take forward their obligations. That is how the Northern Ireland (Executive Formation etc) Act was formed. We did so recognising that, once we had taken on the obligation, we would see it through to its fulfilment. Whether that is deemed right or wrong, it is the law of the land and is exactly what we will do.

I shall take some of the points in reverse, as that may be easier. In response to the question from the noble Baroness, Lady Humphreys, about donations, the issue is that none of the parties has expressed any change in its view about backdating. The sister party of the Liberal Democrats here, the Alliance Party, has pushed strongest and most consistently for backdating, but other parties, notably the DUP and UUP, were keen for this to be a point going forward. Some of the other parties did not express a view on this, but none has changed its view. I am happy to write again to the noble Baroness with more details, but in the recognition that we need to bring this area to rest. I will write on that point.

My noble friend Lord Bates kindly brought the issue back to where we need to focus, for we are here today doing something that should be done elsewhere. As a number of noble Lords have observed, we have seen a deterioration of the situation in Northern Ireland, which is much to be regretted. The political vacuum that exists now will continue to be a problem. What we are doing here today is trying to address certain issues, in but a small moment in time. In truth, until an Executive is formed and the devolution situation works, we will not have adequate governance in Northern Ireland.

I hope that the deal spoken of by the noble Lord, Lord Murphy, delivers for Northern Ireland. I hope that that happening will take away one of the principal obstacles to the parties coming back together. We should be under no illusion that Brexit has been a factor in the parties’ approach to the situation. It would be remiss of me not to point that out. I therefore hope that a deal will remove one of the stumbling blocks—not the only one—and allow those parties to return to government, but, at present, we look forward to that, rather than being certain that it will happen.

I now turn to the conspicuous and very serious issue that has been raised by a number of noble Lords. That is abortion. I state at the outset that I believe this matter should have been taken forward by a devolved Executive. I am happy to put that on record once again. It will not be so; it will be taken forward by us. We have debated this more than once, and I want to correct some of the statements that I believe have been made in error.

The five-month period we talked about is the most challenging aspect of this. At the outset, we need to recognise that abortions in Northern Ireland can take place only in a registered clinic. Some have said that this can simply be circumvented if there is but one NHS employee. That is not true. The clinic still has to be registered and the NHS employee taking part needs the permission of the NHS commissioners. That has to be done formally. Therefore, this is not carte blanche for people to create an opportunity in secret, whether in a front street, a middle street or a back street. It was not designed to be that and it will not be that.

[Baroness O'Loan]

Perhaps when the Minister gets away from the House he could look again at Regulation 5.

[Lord Duncan of Springbank]

I am very happy to state categorically that in any clinic, even if it has one NHS employee, that employee must have the permission of the NHS commissioners. I will write on this point and lodge the letter in the Library to make it very clear that we eliminate this as an issue that might percolate back to Northern Ireland in a nefarious and bad fashion. Equally, it is important to stress that, should there be an attempt by any private clinic to seek registration, it will not be a simple or quick procedure. Certain obligations must be met, and they will be met very carefully during this period. It is important to stress that anyone who seeks to open a clinic that is not registered or that operates without due diligence will be subject to the criminal law, and that law will be broken if they do that. It is important to appreciate that in Northern Ireland.

Further, any independent practitioner who might wish to set up a practice must register with the Care Quality Commission. Therefore, again, it is not simply a question of wish fulfilment; they must undertake legal obligatory steps. The premises would need to be established and investigated, and it would be necessary to ensure that they met those criteria. I note that the period that we are talking of is five months. I also note that almost anything involving bureaucracy does not get resolved in five months.

It is also important to set out very clearly that guidance has already been issued by the GMC and the royal colleges to the practitioners in Northern Ireland so that they are aware that, should we be unable to form an Executive, those are the conditions under which they will operate. Any noble Lord who wishes to see those conditions can consult the Library or go to GOV.UK. We have been very clear and transparent, ensuring that they are clear.

[Baroness O'Loan]

I am very sorry and I do not intend to interrupt the Minister repeatedly but I would like to ask whether he accepts that the GMC guidance is predicated upon the Abortion Act 1967 and the obligations of doctors under that Act. In fact, the GMC is not a regulatory body or a law enforcement body, and practitioners in Northern Ireland cannot be asked to be bound by legislation that does not apply or guidance relating to legislation that does not apply.