Northern Ireland (Executive Formation and Exercise of Functions) Bill

Baroness Barker Excerpts

2nd reading (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Baroness Barker (LD)]

My Lords, I am very pleased to follow the noble Lord, Lord Hayward, and I wish him all success with all his efforts to make sure that there is justice for our brothers and sisters throughout the United Kingdom.

I want to get back to the Minister’s opening speech. He said:

“Let me be clear that the Bill does not give the Northern Ireland departments new powers. Instead, it provides clarity on the exercise of existing powers”.


That is the point about Clause 4 that I wish to address. The purpose of Clause 4 is to allow the UK Parliament, in the absence of a Northern Ireland Executive, to scrutinise the impact of existing laws on abortion and same-sex marriage in Northern Ireland and, specifically, their incompatibility with the UK’s human rights obligations. The clause requires the Secretary of State for Northern Ireland to provide clear guidance to Northern Ireland’s civil servants with regard to the operations of these laws and to update the House of Commons each quarter on how she plans to address the laws’ impact on human rights obligations. It does not change the law in Northern Ireland.

I say to the noble and learned Baroness, Lady Butler-Sloss, it may be that this has been misinterpreted, but I think that Stella Creasy MP, in introducing this in another place, could not have been clearer when she said that it did not change the law in Northern Ireland. If people who are opposed to it choose to misinterpret it and overstate it, that is a different matter, but nobody who has supported the inclusion of Clause 4 as it now stands has made that claim. People who object to the substance of it certainly have—that I would accept.

There have been recent court cases which have cast doubt on the compatibility of the current Northern Ireland law with convention rights. The Supreme Court case in the summer questioned whether the current law in Northern Ireland was in contravention of Article 8. There will be further cases later this year which will return to the Supreme Court. That is the reason that this is important. The noble Lord, Lord Morrow, and several other people have repeatedly returned to decisions that were made in 2016, but life goes on in Northern Ireland, and things which happen in people’s lives all the time are raising new cases which will go to law.

There is deep confusion about the current law in Northern Ireland, which is interpreted by professionals in very different ways, and that leads people to be charged under the law. In 2017, a man and a woman had to accept formal cautions under the Offences Against the Person Act 1861 because they were seeking solutions for the termination of a pregnancy because they could not do what the many hundreds of other women are forced to do, which is to leave Northern Ireland and come to the United Kingdom in order to obtain the rights which are perfectly afforded to other women in England and Wales. We know that a woman at the moment faces potential prosecution for purchasing abortion pills for her then 15 year-old daughter, who had been the subject of an abusive relationship and had been raped. She has been granted a judicial review to challenge the decision of the Public Prosecution Service to pursue a prosecution against her—which was the result of the sharing of her information by a medical professional. This is the sort of thing on which the people of Northern Ireland, and in particular professionals who engage in implementing the laws, need further guidance.

The noble and learned Lord, Lord Mackay, said that the Human Rights Act does not change law, and he is absolutely right—it does not. I put it to him that if it did, in line with the Supreme Court’s recent ruling on abortion law in Northern Ireland, reform of Sections 58 and 59 of the Offences Against the Person Act would have happened. But it will not, and it will not under this law, either. The amendment to the Bill made in the Commons allows the court to rule on the compatibility of our laws with convention rights, like the Supreme Court did in June 2018 when the noble and learned Lord, Lord Mance, found that deferring to the Assembly, which had not sat for 18 months, to reach its own conclusion was not an appropriate course, as the need for such an amendment is evident. He said:

“the present legislative position in Northern Ireland is untenable and intrinsically disproportionate”,

in relation to abortions in cases of rape, incest or foetal abnormality.

I will say the following about the devolution matter, as devolution has been used a lot in this debate. I point out to noble Lords that the amendment which now stands as Clause 4 was passed by a majority of the House of Commons, in which there are representatives whose commitment to devolution goes way beyond that of anybody else in this House. They chose to pass this law and did so by a significant majority, because they never saw the devolution settlement as a reason to abrogate the human rights of people across the United Kingdom. This is an important and necessary piece of legislation at the moment, which will enable women in Northern Ireland simply to access their human rights.

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.