Scotland Bill

Debate between Earl of Dundee and Baroness Hayter of Kentish Town

Monday 22nd February 2016 Lords Chamber

[The Earl of Dundee]

My Lords, in supporting this amendment, I stress three aspects: its timeliness without leading to procrastination; between the two Parliaments and Governments its inference of co-operation; and within the United Kingdom, both in Scotland and elsewhere, its enhancement of good practice. It is clearly desirable to avoid teething troubles following powers which may have been transferred too quickly. In particular, it is indeed so concerning the British Transport Police, instanced just now by the noble Earl, Lord Kinnoull. Yet a timely transfer means just that, and if for good reason it is judged to take place at a certain moment rather than at another, then that transfer of powers has become neither prevaricated nor procrastinated. This is not least the case since the decision on when to transfer will have been made by Scottish Ministers and the Secretary of State together in a spirit of co-operation, thus jointly enhancing good practice by adopting a necessary method which benefits both Scotland and the rest of the United Kingdom.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I speak to Amendment 82, in my name and that of my noble friend Lord McAvoy, which allows some time for consultation about the implementation of Clause 50. That clause was a late addition to the Bill, which means there has not been the normal consultation with women’s groups, medics, lawyers, the health service or, indeed, ethicists and constitutional experts. Above all, there has been no discussion about the implication for the funding for abortion for women should they move between Scotland and England or Wales, should any differences emerge in the future between the laws on abortion either side of the border. We should consider the lessons of Northern Ireland before implementing this new provision.

Although the Smith commission reported that the parties favoured the devolution of abortion, regarding it as an anomalous health reservation, it recommended only that further serious consideration should be given to its devolution and a process established immediately to consider the matter further. However, that process has not happened and our amendment seeks to give the matter proper consideration before the clause is implemented. Indeed, because the Smith commission did not call for immediate devolution, the Government initially thought that an early change would pre-empt such discussions and there was, therefore, no reference to abortion in the original Bill. An amendment was tabled, but not voted on, in Committee in the Commons, by which stage women’s groups and the Scottish TUC began expressing their concerns, particularly that this could have a discriminatory impact on women in Scotland, just as in Northern Ireland.

The inclusion of the provision was announced by the Government on 14 October, with the amendment tabled on Report in the other place and with none of the debate that took place during the original devolution Bill. Looking back to 1998, there was quite a strong view that abortion, duly protected and regulated by law, was a human rights issue and not simply a medical or, indeed, a criminal matter. There were many voices of the view that a woman’s right to choose should be universal, not delimited by boundaries and borders.

It is this risk of cross-border differences, leading to women having to travel for an abortion, that concerns many, partly because it might undermine the notion of a UK citizenship, but also for the more prosaic but serious issue that there is a fairness dimension. Moving country for a termination is an option more open to the wealthy and well connected than to those without access to money, transport or friends in distant parts. We know the difficulties and trauma that such journeys involve for many Irish women. Indeed, because of the variation in law, some 5,000 Northern Irish women and 20,000 from the Republic of Ireland travelled to Great Britain for an abortion between 2010 and 2014. That is 12 Irish women crossing the Irish Sea every day.

This reflects the fact that when women are desperate for an abortion, whether as the result of rape, because of foetal abnormalities, because of incest or because the woman cannot handle a child due to her psychological state or her age—there are girls as young as 14 coming here for abortions—she will do whatever is needed. No border will prevent that. What is more, though a child in Northern Ireland can come over to be treated at Great Ormond Street on the NHS, her mother, needing an abortion, cannot get it on the NHS but has to go privately and pay, in addition to air fares. It is for these reasons that we need to consider how different rules in England and Scotland would be handled, should teenage girls have to make cross-border journeys to have the procedure, for example. For nearly 50 years, there have been the same rights across Great Britain, but this clause could alter that.

It is not that we anticipate any change in the Scottish law. Indeed, the First Minister said that her Government had no intention of changing the current law, but she cannot, of course, bind her successors. Given the demand for abortion to be devolved, there is surely the possibility of a change being made. It is better to think through the implications now rather than after any such decisions. Indeed we read suggestions that the new power will indeed be used to change Scottish law, with CARE for Scotland, a charity, saying that there should be a debate among MSPs about whether Scotland has the right laws. Lynn Murray of the Edinburgh branch of SPUC has said that devolving abortion would get people thinking about it and that it is time that we looked at it again, while the Scottish Secretary for Social Justice, Communities and Pensioners’ Rights, Alex Neil, has said that he personally favours reducing the 24-week limit.

That is of course a matter for the Scottish people, so we shall not resist or seek to remove Clause 50. However, we need time to consult on and possibly prepare for any impact that such a change could bring and how to respond, particularly as to whether women living in Scotland—be they English women, Welsh women or Scottish women—would be able to have an NHS-funded abortion, say in Newcastle or elsewhere, should they then fulfil our criteria for termination but not new criteria in Scotland. Whatever differences might emerge, some women will want or be forced to travel from England to Scotland or from Scotland to England to exercise their rights under one or other of the two laws. Amendment 82 allows for a 12-month consultation with relevant groups and representatives in Scotland and in the health service to ensure that the process is correct and to follow the wise advice of the Smith commission.

I turn to Amendments 80 and 81 in the names of the noble Earls, Lord Kinnoull and Lord Dundee. Amendment 80 provides that Clauses 13 to 68 would not come into force until the relevant Secretaries of State were satisfied that the Scottish Government had appropriate arrangements in place to exercise the relevant powers. That would mean that discretion remained with the UK Parliament on matters that will be devolved issues, undermining one of the most important principles of the devolution settlement. Your Lordships will not, therefore, be surprised that we oppose this amendment.

In a similar vein, Amendment 81 would delay the devolution of the Scottish Crown Estates until the Secretary of State had laid a report before Parliament regarding the Scottish Crown Estates commissioners and the arrangements to facilitate the transfer of assets. We do not consider it appropriate to delay the commencement of this clause. Furthermore, we understand that talks are taking place between officials on the transfers of assets and that those are still ongoing. It would perhaps be helpful if the Minister could indicate whether the issues included in the amendment are part of such discussions. We understand that the date for the transfer has yet to be decided or even much discussed. I do not know whether the Minister has any further update on this since the letter that he wrote to my noble friend Lord McAvoy on 12 February. We look forward to his comments on that.