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.