Abortion (Northern Ireland) Regulations 2021

Baroness Smith of Basildon Excerpts

Wednesday 28th April 2021 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, just over nine months ago the Minister and I sat opposite each other at the Dispatch Box and the House debated the terms of the abortion provision in Northern Ireland, as set out in the 2020 regulations. Exactly a year before that, I sat opposite the noble Lord, Lord Duncan, while the House engaged in what was then a thoughtful and detailed debate on the Northern Ireland (Executive Formation etc) Act and the decriminalisation of abortion in line with the CEDAW recommendations, which we have heard about today.

This debate has been heard in your Lordships’ House on a number of occasions, and we know there are long and deeply held convictions across the House on both sides of the issue. That is evident today from the amendments we see, but I urge noble Lords to respect the views of other people in the language they use. Nobody has the moral high ground on this issue. One of the reasons I feel so strongly about the provision of abortion rights in Northern Ireland is that, as the noble Baroness, Lady Barker, pointed out, it is not compulsory but a provision of services.

Noble Lords may recall the reasons why the Republic of Ireland changed its law. In 2012 a 31 year-old woman was denied an abortion following an incomplete miscarriage because the law would not allow it, and she died as a result of being denied that abortion. I am sure no noble Lord in this House supports that happening to any woman, but the right of life is for women as well. That seems not to have been addressed in the debate we have had, and I am sorry for the tone of some of the comments that have been made.

It is now getting towards two years since the Northern Ireland (Executive Formation etc) Act was passed, and the Secretary of State has a statutory duty to ensure that the recommendations in paragraphs 85 and 86 of the CEDAW report are implemented. The change in law then was in response to findings that the United Kingdom, as the state party, was responsible for

“grave and systematic violations of rights”.

It was then, as it is now, the duty of this Parliament and the UK Government to uphold the rights of their citizens at a UK-wide level.

Although the 2020 regulations provided a framework for service provision, we know that the proper funding and commissioning of those services is yet to take place. That leaves women and girls in Northern Ireland without the same access to reproductive rights and advice as their counterparts in every other part of the UK. The existing law is not being implemented, and that is the reason behind these specific and, as we have heard, limited regulations before us today.

Today’s order is supported by the Royal College of Obstetricians and Gynaecologists, the British Pregnancy Advisory Service, Amnesty International and Informing Choices NI. They report that: early abortion services are currently beset with uncertainty; they are being run by local health trusts without funding, which puts them at risk of temporary or permanent closure; and multiple heath trusts have stopped provision of services for periods of time. I have heard just this weekend that, in the Western Health and Social Care Trust, services were being provided by a single doctor without support until, unsurprisingly, that was no longer viable. On Friday, that trust suspended its early medical abortion service, effective immediately, and is refusing all referrals. Today’s order gives the Secretary of State the power to direct that necessary action be taken to provide safe abortion services in Northern Ireland, as the law requires. We support it.

I have a couple of questions for the Minister and one brief comment, if time allows. First, he said the Secretary of State does not intend to use his power to direct immediately, but he is seeking further action from the Department of Health before the Summer Recess. Can he give any more information on that? Largely, my issue is with the continuing uncertainty.

Secondly, it has to be recognised that abortion services are not a stand-alone provision. They are part of the wider landscape of reproductive sexual health services. Could the Minister give more details on what supportive work is being done to provide counselling, access to contraception and quality relationship and sex education alongside changes in healthcare provision? The two go hand in hand.

Finally, the noble Baroness, Lady Suttie, spoke about the vote in the House of Commons last night, when these regulations were supported by 431 votes to 89. When we had a debate on the 2020 regulations, I said:

“As an unelected House, our role on secondary legislation is limited and narrow.”—[Official Report, 15/6/20; col. 1995.]


I have said something similar in your Lordships’ House on a number of occasions. At times, we find that frustrating—nobody more so than me, I can say. It remains frustrating, but it also remains my view that that is our role with secondary legislation. It would be extraordinary if, having seen secondary legislation passed in the House of Commons by 431 to 89, this House would decide to take a different view and, in effect, pass fatal Motions. As I have indicated, I support the order and oppose all three amendments.

[Viscount Younger of Leckie (Con)]

My Lords, first, I thank all speakers who contributed to this debate on the regulations on a subject matter which, as I said in my opening speech, I fully recognise is a sensitive and emotive issue. But can I start by saying how much I appreciated the remarks from the noble Baroness, Lady Suttie? Her speech was sensible and balanced in terms of where we are now. She used the word “regret,” and she is right, in terms of the position we find ourselves in.

I would also like to thank the noble Baroness, Lady Smith, for her remarks. I was grateful that she put, extremely eloquently, what we might both agree is the other side of the argument. I was very moved by the short story that she gave about the sad case of a particular girl.

I will directly answer one question the noble Baroness, Lady Smith, gave about the remarks that came from the Minister of State, Robin Walker, who said the plan is that the Department of Health in Northern Ireland will, hopefully, take heed of what we are doing and move quickly. However, he is happy to have what he has called a pause before the Summer Recess. That means he wants to allow further movement from the Department of Health so is prepared to allow a bit of leeway. I hope that provides some clarity, but if it does not, I will certainly write to the noble Baroness.

The noble Baroness’s second question, which I scribbled down, on the extent and quality of abortion services, is an extremely good point. I may be able to address that later, but if not, again, I shall write to the noble Baroness.

[Baroness Smith of Basildon (Lab)]

My question was not on the quality of abortion services but on the wider services provided on sexual health, contraception and care.

[Viscount Younger of Leckie (Con)]

Of course. That is an extremely good point. I will pick up on that.

However, I recognise that several noble Lords—and many today—have registered their strong opposition to what we are doing. But we are under a clear statutory duty, and it is important that women and girls in Northern Ireland are afforded equal rights to those living across the rest of the UK.

Before turning to the substantive issues raised in today’s debate, since some noble Lords have questioned the extent of our legal powers, I would like the House to note that the JCSI has not drawn the instrument to the attention of both Houses for being ultra vires. But I will speak about constitutional matters later on, assuming that there is time.

I also note the amendments tabled by the noble Lord, Lord Morrow, the noble Baroness, Lady O’Loan, and my noble friend Lord Shinkwin. I hope that the answers I give in relation to the issues raised will go a little way in explaining that these amendments, in our view and in my view, should not be supported.

My noble friend Lord Shinkwin raised issues about the potential for the framework set out in the March 2020 regulations to allow for discrimination against disability. I do, as he will know, respect my noble friend, and I am grateful to him for raising this important and sensitive issue once again. He should note that we are legally bound to implement the CEDAW recommendations, which include providing access to abortions in cases of severe foetal impairment, not only in cases of fatal foetal abnormalities. It is our firm view that the regulations properly comply with the statutory duty under Section 9 of the NIEF Act, which includes implementing all the 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. The regulations are consistent with the rights under the United Nations Convention on the Rights of Persons with Disabilities. Proper provision of information, clear medical advice and counselling and other supports are all key in allowing a woman or girl to make an informed decision in what are often difficult situations. I was grateful for the remarks made by the noble Baroness, Lady Barker, who spoke eloquently and passionately about this aspect. This ensures access without barriers for victims of sexual crime as well as other women seeking an abortion, supporting the rights of women and girls to make informed decisions about how they wish to proceed, based on their health and wider circumstances, within the health system, rather than looking to alternative, unsafe means. This 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.

I would like to pick up on a point raised by my noble friend Lord Shinkwin. I will not be addressing his very strong views that he raised, and, as he would expect, I disagree very strongly with much of what he said, I regret to have to say. Let me say this: given the often late diagnosis and the timing of follow-up scans and tests, women will need to be given time to understand the nature and severity of the condition that they find themselves in. It is only right that women have appropriate time to make individual, informed decisions based on their own health and wider circumstances, including support where they want to carry a pregnancy to term. I think this point was made by the noble Baroness, Lady Barker, as well. It is crucial that the Department of Health acts urgently to formally commission full services, consistent with the regulations we made, so that these support measures can be properly delivered.

As I mentioned in my opening speech, I remind noble Lords that the Assembly can consider and debate issues related to abortion. As I also said in my opening speech, any amendments must be compliant with convention rights, and the Secretary of State has an ongoing obligation to ensure ongoing consistency with the recommendations in the CEDAW report in Northern Ireland.

The noble Lord, Lord Morrow, said that abortion remains devolved, and that the Government should instead be asking Parliament to repeal Section 9; that was mentioned by a few other Peers as well. I remind noble Lords that, although the Executive was restored, the statutory duty in Section 9 of the Northern Ireland (Executive Formation etc) Act did not fall away with the restoration, nor with the making of the initial regulations that came into force on 31 March 2020. The devolution settlement does not absolve us of our responsibility to uphold the rights of women and girls in this context. The noble Lord may not agree, but I think this goes a little way towards answering the question raised by the noble and learned Lord, Lord Hope of Craighead. This is not about stepping in on a devolved matter, as the noble Baroness, Lady Hoey, suggested it was. This is about ensuring compliance with the statutory duties Parliament imposed on the Secretary of State for Northern Ireland in mid-2019.

One point that I wish to comment on—it was also raised by the noble Baroness, Lady Suttie—is that I do not believe that the noble Lord, Lord Morrow, is correct when he says that all Northern Ireland MPs oppose this. May I quote from Stephen Farry, who said:

“As an MP from Northern Ireland, I wish to stress my support for these regulations and the approach that is being adopted in this particular area by the Northern Ireland Office. There is a broad-based political support, and most importantly from the women’s sector, for these regulations.”


Here I echo the words of the noble Baroness, Lady Suttie. This should not be lost on the House.

We are in a unique position on this issue. As I said earlier, Parliament placed the Government under a very specific statutory duty with respect to access to abortion services in Northern Ireland. That is why we have had to deliver the regulations, and continue to have a role in this space. I must re-emphasise these points to many who have spoken today, including my noble friend Lady Eaton, and the noble Lord, Lord Taylor. Although we made the regulations last March providing the framework for access to abortions, and some service provision commenced, this has not discharged that statutory duty in full. We are not seeking to reopen the 2020 abortion regulations, which were approved by a significant majority of this House—by 332 votes to 99—last year.

I shall now quickly answer some of the points raised by the noble Baroness, Lady O’Loan, about the Secondary Legislation Scrutiny Committee’s report, which noted “complex legal and constitutional” issues. I agree that the issues raised are complex. I also agree with what the House of Lords Select Committee on the Constitution said; this was also raised by the noble and learned Lord, Lord Hope. It said that the UK Government and the Northern Ireland Executive should engage in a “constructive” manner.

I recognise that some noble Lords have concerns about the regulations providing unconditional access to abortions up to 12 weeks’ gestation. This 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, can 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.

Before I finish winding up, I want to answer a point raised by my noble friend Lord Moylan and my noble and learned friend Lord Mackay on the international aspect of this obligation. It is true that the rules are domestic, so the duty to implement the CEDAW recommendations in this context is a matter of domestic law, which the Secretary of State is under a statutory duty to deliver, not a matter of international law. We recognise that Parliament has stepped in and imposed this duty on the Secretary of State for Northern Ireland on human rights grounds. I have addressed that directly.

In conclusion, we should bear in mind the fact that these further regulations are ultimately about ensuring that the regulations made in March 2020 are implemented. Essentially, they are about the rights of women and girls, and their 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. That is why I commend the regulations to the House.