Baroness Scott of Bybrook
Main Page: Baroness Scott of Bybrook (Conservative - Life peer)Abortion (Northern Ireland) Regulations 2021
Baroness Scott of Bybrook Excerpts
Baroness O'Loan (CB) [V]
My Lords, I give notice that I intend to press my amendment to a vote. These regulations give the Secretary of State for Northern Ireland a power to direct a Northern Ireland Minister or department, the Health and Social Care Board and the Public Health Agency to take any action for the purpose of implementing the recommendations in paragraphs 85 and 86 of CEDAW. The powers conferred in these regulations are therefore extremely wide.
The Government have asserted that they have a duty to bring these regulations, but there is no time limit. This is work in progress for the Assembly and there can be no justification for intervening in the work of the Northern Ireland Assembly on this sensitive issue, disregarding the devolution settlement. The regulations will be implemented through directions from the Secretary of State. It is said that a direction will look like a statutory instrument, but we have procedures for statutory instruments. There are no procedures to scrutinise what is done by the NIO.
I ask your Lordships to vote against these regulations because the Assembly is sitting and the matter is devolved to that legislature. The regulations raise
“complex legal and constitutional questions”;
they go beyond the Abortion (Northern Ireland) (No. 2) Regulations; they undermine the devolution settlement in respect not only of abortion policy but of education; there has been no public consultation; and the regulations were laid just before Easter, preventing the House from considering them before they came into effect.
Your Lordships will recall that this started in July 2019 when a group of MPs, none of whom represented Northern Ireland, urged upon the other place a duty to give effect to the CEDAW recommendations. There was no obligation on Parliament to give effect to them. All the Northern Ireland MPs voted against them, but their votes and the votes of the Northern Ireland Assembly were ignored. The Government did not question what was said in the other place and proceeded to make an unworkable House of Commons clause into Section 9 of the executive formation Act. There were no international legal obligations, something that the Government have now recognised.
This is a matter that should be dealt with by the Assembly. Work has been ongoing. There is a very firm belief in Northern Ireland that every life matters, that both mother and baby matter. There is provision, such as that suggested in CEDAW recommendations 85 and 86, for support for mothers and for those who make the choice, sometimes with great difficulty, to have an abortion. Undoubtedly, more resources are required. Registered medical professionals in Northern Ireland now terminate pregnancies lawfully at no cost to the mother. Such terminations must, under the terms of the regulations passed here, be carried out in health and social care premises. Some 1,345 abortions were carried out in the past reporting year. Abortion is available in Northern Ireland, and safely.
Northern Ireland’s health service was described as broken pre Covid. Mid-Covid, in January 2021, almost one in five of our population was waiting for a first out-patient appointment; half them have been waiting for more than a year. In December 2019 and January 2020, just before Covid, the Royal College of Nursing called the first strike action in its 103-year history in Northern Ireland. With great respect, it is for the political representatives of Northern Ireland to devise a way forward on the provision of health services and abortion services.
Northern Ireland is in a parlous state. Our Assembly is functioning but our political situation is very fragile. Brexit brought civil unrest and the terrorists—ever present—have become more active. Last week a bomb was left in a car into which a young police officer was about to put her three year-old daughter. Noble Lords will have seen the rioting which was switched on on Good Friday and lasted over two weeks. Some 88 police officers were injured, civilians were injured, families were threatened and property was destroyed.
Northern Ireland has a devolved Government. Most recently the Secondary Legislation Scrutiny Committee said that these are politically and legally important issues and should have had more consideration. Our Assembly faces more significant problems than the rest of the UK because of our history, the instability of our current situation and the impact of the EU NI protocol. We are in a different place from the rest of the UK. There is no imperative to affirm these regulations today.
If affirmed they will further marginalise the Northern Ireland Assembly in its attempts to do business co-operatively—
Baroness O'Loan (CB) [V]
It is important that your Lordships’ House respects the attempts being made in Northern Ireland to deliver effective devolved government. I ask noble Lords to vote for my amendment and reject this further attempt to undermine the Northern Ireland Assembly. Help us. Have courage. I beg to move.
Lord Morrow (DUP)
My Lords, the United Kingdom is a relationship between three nations and a Province, a relationship in which together we are more than the sum of our component parts. The union has worked hitherto because Parliament has recognised that it cannot be used to impose a uniformity that undermines the key distinctiveness of the component parts. Parliament could, at any point since 1707, have voted to impose an English legal system on Scotland, but it has not because that would be to fatally disrespect Scotland and render the union unsustainable.
One of Northern Ireland’s distinctions pertains to its approach to the unborn. As the then Secretary of State said in 2018,
“Abortion has been a devolved matter in Northern Ireland since it was created in 1921, and it would not be appropriate for Westminster to seek to impose its will, or to be the arbiter of an issue that has long been devolved to the people of Northern Ireland.”—[Official Report, Commons, 5/6/18; col. 220.]
In the last 50 years in particular, we have developed a distinctive approach that affirms the importance of both lives, the life of the mother and that of the unborn. That may not matter to people in other parts of the union, but it matters very much to the people in Northern Ireland. We are proud of the report that demonstrated in 2017 that 100,000 people are alive in Northern Ireland today who would not have been had we embraced the Abortion Act in 1967 along with the other jurisdictions in GB. Moreover, after a complaint and a five-month investigation, the Advertising Standards Authority ruled that this was a reasonable claim.
What makes the regulations before us today deeply problematic is that they rest on the regulation-making power in Section 9, which was developed on the back of a vote that took place on 9 July 2019 in which 100% of the Northern Ireland MPs who took their seats in Northern Ireland voted no, yet this radical Northern Ireland-only law change was imposed on us by MPs, none of whom has a mandate to represent Northern Ireland. The strength and reality of the union is not confirmed by the ability of the sovereignty of Parliament to impose legislation that pertains only to a component unit of the union against the wishes of its representatives. Rather, it is confirmed by the fact that even though Parliament could impose in these instances, it does not and instead respects the different priorities of the different components of the union in order that the union can continue.
The passage of Section 9 and these regulations has swept those normal conventions to one side. First, it was argued on 9 July 2019 that Parliament was duty-bound to pass the amendment that became Section 9 because Northern Ireland was in violation of international human rights convention obligations under CEDAW and the recommendations of the 2018 committee report on Northern Ireland. However, in paragraph 7.7 of the Explanatory Memorandum accompanying the regulations today, the Government now confirm that paragraphs 85 and 86 of the CEDAW committee report do not constitute legally binding international obligations. As such, they do not provide grounds for overruling devolution or, more fundamentally, the understandings that make it possible to argue for the relationship that exists between the UK’s four component parts.
Secondly, it has been argued that, quite apart from international legal obligations, the law change introduced by Section 9 was necessary because of domestic UK legal process through the Supreme Court judgment on abortion in Northern Ireland in 2018. However, that argument is plainly absurd. The Supreme Court made no binding judgment whatsoever on abortion law in Northern Ireland. It reviewed narrowly whether certain elements of the law in Northern Ireland were not human rights compliant, not whether there was a general right to abortion.
The two areas where the court considered there would be non-compliance under Article 8 of the ECHR were abortions on the grounds of a fatal foetal abnormality and in cases where a pregnancy was the result of sexual crime. The judgment was not binding but, had Stormont been sitting and the law been amended accordingly, it would have resulted in a tiny increase in the number of abortions and the life-affirming traditions of Northern Ireland would have largely continued.
In the context where the existence of life-affirming laws is a long-term distinctive Northern Ireland legal tradition backed by its representatives on 9 July 2019, and where there is no justification for sweeping that aside on the basis of either international obligations or the ruling of the Supreme Court, one has to confront the harsh reality that the only reason why we are here today is that Parliament decided to take the risk—
Lord Morrow (DUP)
—of dispensing with the Northern Ireland tradition because doing so was a greater priority to Members of Parliament than the continuation of the union.
Baroness Eaton (Con) [V]
My Lords, as a Conservative and Unionist, I am acutely aware that the maintenance of our union does not depend on the imposition of uniformity. If the union is to survive, we must respect the key distinctions between its different parts. Northern Ireland’s long tradition of life-affirming laws may not be to everyone’s liking, but we must acknowledge their existence—not because of a stunted view of human rights but because of a wider vision in which the rights of both the mother and the unborn have to be taken into account.
I am deeply concerned that, rather than respecting the traditions of Northern Ireland, some representatives of other parts of the union have actively sought to disinherit Northern Ireland of her traditions. We simply cannot do that if we want our union to survive. The vote that started this process in another place on 9 July 2019 resulted in all Northern Ireland MPs who took their seats in Westminster voting no, and yet this unwanted legislation was imposed on the Province by MPs from other parts of the union.
I cannot think of any example of this kind of case that ended well. There was the flooding of the valley in Wales and the destruction of the village of Capel Celyn, in the context of 35 of Wales’s 36 MPs voting no. That is a huge issue for many people in Wales more than 50 years later. The imposition of the poll tax on Scotland a year early, against the wishes of its elected representatives, provides another case in point. Both events have been the subject of public apologies and, sadly, both now inform the narrative of independence in Scotland and Wales.
It is no surprise that legislation resting on such troubled foundations should be less than straightforward. These regulations cannot be enforced—certainly not in the normal way. As the Government conceded to the Secondary Legislation Scrutiny Committee, the only way to enforce them would be to judicially review the decision of an actor to whom they are directed to ignore them. Given this difficulty, and the implications of the nature of the vote of 9 July 2019 on which the regulations rest, I suggest that, rather than continuing with these regulations, the Government give Parliament the option of considering the restoration of Stormont and repealing Section 9.
In making this point, I say to advocates of abortion liberalisation: “What are you scared of?” It is patently obvious to anyone who knows anything about the Northern Ireland Assembly that it is not going to move back to a pre-October 2019 position. Indeed, it is interesting that the only legislative steps that the restored Assembly has taken—
Baroness Eaton (Con) [V]
I am finishing. The only legislative steps that the restored Assembly has taken is to consider a Bill to prohibit abortion on the basis of non-fatal disability until birth, a measure that would prevent perhaps only one abortion a year. I will certainly support the Motion in the name of the noble Baroness, Lady O’Loan.
Baroness O'Loan (CB) [V]
My Lords, I have listened carefully to this debate, and I would like to correct a couple of misapprehensions. Abortion services are available in Northern Ireland, and they are funded. There were 1,345 funded abortions in Northern Ireland, and there have been no instances in which people have been refused abortion in the way described by the Minister. More importantly, support services are also available. We do need more resources; we always need more resources.
Noble Lords have identified the important issues here as the protection of life and our constitutional settlement in Northern Ireland. To revert to the Minister’s last point, where Parliament has legislated, it can, using its sovereign powers, change the law. This matter of the CEDAW recommendations is not a matter of our international human rights obligations, and is therefore devolved. It is therefore a matter that the Northern Ireland Assembly can change.
I thank noble Lords for their thoughtful and considered contributions to the debate. I thank those who recognised the current situation and spoke to encourage the work of the Assembly. I also thank the noble and learned Lords, Lord Mackay and Lord Hope, and other noble Lords for their clear articulation of the nature of our constitutional devolution settlement, which is the product of the Good Friday agreement, which is under threat as we talk today. We have had people, particularly in the loyalist community, withdrawing their support from the Good Friday agreement.
Baroness Scott of Bybrook (Con)
Can the noble Baroness please move to the vote, as we are at the end of our time?
Baroness O'Loan (CB) [V]
This is where I am.
In this febrile and volatile situation, I ask you to take courage. I wish to test the opinion of—
Baroness Scott of Bybrook (Con)
Order. I am sorry, but will the noble Baroness please move to the Division?
Baroness O'Loan (CB) [V]
I said that I wanted to test the opinion of the House.