Northern Ireland (Executive Formation) Bill

Baroness O'Loan Excerpts

2nd reading (Hansard): House of Lords
Wednesday 10th July 2019 Lords Chamber

[Baroness O’Loan (CB)]

It is with a very heavy heart that I speak to noble Lords today. First, I would like to join those who have paid tribute to Sir Anthony Hart for his superb work, and to express my sympathy to his family. We have lost a very distinguished public servant in Northern Ireland.

Being without a Government for two and a half years has been quite difficult for us. We are stuck. The consequences for our economy, which is now in decline, are well known. Our health service is struggling. Our education service, as noble Lords have pointed out, requires significant development and our past has not been dealt with in a coherent and constructive way. That is all well known.

There seems to be little evidence that the current negotiations will produce an Executive. We do not know what is being discussed at these purported negotiations; the signals are profoundly depressing. The Secretary of State told us yesterday that they have had 150 meetings, but they could not have the one that worked it out together.

There are hundreds of issues on which the parties could unite for the common good, and there is urgent need for actions that could benefit our whole community and would not be contentious. Such actions would begin to heal some of the harm done in the past two and a half years, when so much trust has been eroded in our democracy. Sinn Féin continues publicly to support the deeply anti-democratic campaign of murder by the Provisional IRA. It is deeply resented, not just by Unionism. In private conversations we are receiving no assurances of any kind. The noble Lord, Lord Morrow, said that nothing is coming.

What happened yesterday in the other place was reminiscent of colonial days. The people of Northern Ireland are being denied the right the law accords them to make their own decisions in devolved matters. Through the amendments introduced yesterday, the other place has driven a coach and horses through the Good Friday agreement, which I would remind noble Lords is an international treaty binding on the United Kingdom. In addition, by doing this, the other place has given effect to the demands of Sinn Féin and taken a decision against the DUP. Others are saying that the DUP is very happy about this because it will not have to deal with those two issues. I have not heard noble Lords here or colleagues elsewhere express that view.

In imposing a deadline of 21 October for the negotiations to succeed, in the absence of which the Government will have to act in accordance with this Bill, the other place has taken away from the people of Northern Ireland their right to make their own decisions about matters which in law are devolved to them. They have acted in a partisan manner.

It is not that devolved powers have been withdrawn from Northern Ireland; they will exist in parallel with this Bill. In continuing to present this Bill—of course, the Government could withdraw it—the Government have made it much more unlikely that Sinn Féin will come to the table with open hearts and willing minds. It does not need to do so. It can just sit and wait until the Members of the other place do the work for it. As a consequence of the other place passing these amendments, Sinn Féin does not have to engage in democracy to achieve its ends; it can just say, “We refused to engage and look what happens”.

In 1967, the Parliament of Northern Ireland voted against embracing the Abortion Act. In 2016, the Northern Ireland Assembly, as noble Lords have heard today, voted by a clear majority not to change our abortion law in any way. The Government have consistently given assurances to the people of Northern Ireland that the devolution provisions will be respected. On 30 October last, I pointed out that in June of that year, the noble Lord, Lord O’Shaughnessy, gave me an assurance that the intention of the Government and the NIO,

“is to restore a power-sharing agreement and arrangement in Northern Ireland so that it will be up to the people of Northern Ireland and their elected officials to decide on abortion policy”.—[Official Report, 6/6/18; col. 1312.]

In October 2018, the Minister said:

“As someone who comes from part of the kingdom which has a fully functioning devolved Government, I stress again that these decisions must be taken by the devolved Administration in the north of Ireland. There is no point in pretending we can usurp democracy in that fashion, simply because devolution is not to our liking. Devolution must function even when it is not as we would like to see it, but rather, how it must be”.—[Official Report, 30/10/18; col. 1278.]


As the noble Lord, Lord Alton, said, until last week we did not know what would be in the amendment. We had intimations that it might be coming, but the first we saw of the Creasy amendment was on Thursday morning last. Within hours, it had been passed by the House of Commons. The expectation was that the Speaker would do the right thing and exclude it because it was outside the scope of the Bill. The transparent inappropriateness of this was further underlined by the fact that—entirely consistent with the vote by the democratically elected Northern Ireland Assembly in 2016—100% of our MPs voted against the provision. It was imposed on us by more than 300 MPs who have neither consulted us nor represent us.

If we meddle in the affairs of Northern Ireland in this heedless way; if we do not object to the House of Commons introducing clauses which have nothing to do with the Bill before the House; if we accept that the Government have lost control of Parliament; if Parliament allows one person—the Speaker of the other place—to make his own decisions about what can and cannot become law, without having regard to international treaty obligations such as those which derive from the Good Friday agreement, human rights law and even the domestic law of the United Kingdom, we are surrendering our democracy and our much cherished constitution. For Northern Ireland, with 17 MPs in a Chamber of 600-plus, there is no democracy now. Devolution has gone, in effect, on those occasions on which Parliament decides it wishes to act against it.

The Select Committee on the constitution of your Lordships’ House, in a paper published just nine days ago, entitled The Legislative Process: the Passage of Bills through Parliament, stated at paragraph 39:

“We regret that legislation relating to Northern Ireland has regularly been fast-tracked. This has become common not just for bills which might be required to address urgent or unforeseen problems, but for routine and predictable matters such as budgetary measures. The political stalemate in Northern Ireland has led to an absence of a functioning Executive and a democratic deficit. Fast-tracking bills relating to Northern Ireland reduces further the scrutiny these measures should receive. Routinely fast-tracking in this way is unacceptable, unsustainable and should only be used for urgent matters”.


I have no doubt that the ultimate purpose of these amendments is to change Northern Ireland and UK law by decriminalising abortion. I know that many of your Lordships will have a different view on abortion from me, and I accept that, but that is not actually the point today. Clause 9 would mean that abortion would cease to be subject to any penalty in all circumstances. That means that any baby, at any stage of gestation, right up to birth, could be aborted without penalty. As the noble Lord, Lord Alton, said, there is no human right to kill unborn babies.

I believe, as do hundreds and thousands of others, that human life exists from the moment of conception and that it should be protected at all times. Even those who are pro-choice are now beginning to accept that abortion is about killing babies. If you are three or five months pregnant and you go for a scan, the radiographer does not say to you, “That’s your foetus” or “That’s your embryo”. They say to you, “That’s your baby”. When I lost my baby, as the consequence of a bomb explosion, the doctor who stood at the end of my bed did not say to me, “Your pregnancy is over”. He said to me, “Your baby is dead”.

I will say a word to the noble Baroness, Lady Harris. I reassure her that neither I nor hundreds of thousands of people in Northern Ireland feel oppressed, down- rodden or deprived of equality—far from it. We think that our law brings freedom to mothers and their children, and we seek to support them. I spoke in Oxford just a couple of weeks ago on freedom of conscience, and at the end of it, a woman came up to me. She said that she had recently carried a baby who had Down’s syndrome, and at each of her prenatal visits, the doctor had said to her, “You know it would be much easier—you could have an abortion. You should have an abortion”. It was a constant message, right through her pregnancy—a time when women are most vulnerable.

Let us be very clear. Clause 9 would change the law in England and Wales. The Member for Walthamstow said in the other place in June last year:

“We would like to repeal sections 58 and 59 of OAPA”.—[Official Report, Commons, 5/6/18; col. 207.]


Those are the penalty provisions of the Offences against the Person Act. This clause will override not just the expressed will of the last democratically elected Northern Ireland Assembly but the deliberations of this Parliament.

I do not believe that those who voted as they did in the other place yesterday really intended to abolish any penalty for unlawful abortion in the UK, yet that would be the effect. If we decriminalise abortion—that is what this amendment seeks to do—we will make abortion available up to birth. I do not know how many of your Lordships have known the beauty and the terror of the moment of birth: the moment when a new soul, a beautiful little baby, comes into the world. It is a moment of absolute wonder. I accept that there are occasions when women do not want to carry their babies to term, but we need to be very clear that abortion is not a painless, clean, medical process. A baby will be killed in the womb through medication, have poison injected into its heart so that it is born dead, or it might just be born alive, as are an average of 30 babies each year in England and Wales, and left to die. In that brave new world, there will be fewer and fewer children with disabilities, as they do not merit the right to life. According to the Bill before your Lordships’ House, children with disabilities will be given no protection. Yet we know that while children may be born with disabilities, that is not the sum total of the reality of their existence; they deserve more than to be defined by their disability.

In England and Wales, we abort children because they are the wrong sex—we have proof of it—and because they have conditions like club feet and cleft palates, which are eminently curable. In effect, we have abortion on demand up to 24 weeks, and we will have abortion to birth. What sort of civilisation would countenance the killing of defenceless, unborn babies in the place where they should be safest: the mother’s womb? What sort of civilisation does this right up to the moment a baby is born?

Reverting to parliamentary procedure, there has been no White Paper, no Green Paper, no consideration of the impact of the provision, no consultation, no explanatory memorandum from the Member for Walthamstow, no consideration of conflicting current legislative measures. There has been no provision even for this to be done with the proper parliamentary procedure through both Houses of Parliament, rather than a Statutory Instrument subject only to negative resolution, which is all that would be required—the least accountable form of legislation. There will be no discussion in either Chamber of where medical science is in relation to the life of the unborn child, and no consideration of the pain which we know unborn babies suffer when they are aborted. There has been no thought of what we are saying as a people when we force this measure through at the behest of an unelected, unknown committee, operating under a complaints procedure contained in a protocol to a convention.

The European Court of Human Rights has repeatedly stated that states have a margin of appreciation in these matters: we have the right not to do this and we should not do it. Yet, this is what the other place has determined will dictate our future law, not proper parliamentary process, not even decisions influenced by the finest legal minds in the country making decisions in our Supreme Court, with the protections afforded by our resolute application of the rule of law. It is profoundly and fundamentally wrong that we should agree to consent to the disposal of human life before birth by means of a measure that was designed only to extend the period for forming an Executive in Northern Ireland until 21 October, and to grant powers to the Secretary of State to extend the period to 13 January 2020. We must reject this in Committee; if we do not, Northern Ireland will have had abortion foisted on it at a time of political crisis by the Parliament of a country that has some responsibility for what has happened to it in the past. There are those who are seeking to inflict on us more troubles. We have seen the bombing attempts. Last night, we saw the problems at bonfires as we approach 12 July—environmental problems that nevertheless resulted in rather more serious problems. Many of us still live in fear, and it is not an irrational fear. We have huge problems, with marginalised, impoverished and deprived people living in bleak conditions, where the rule of the terrorists still operates. Let us be under no illusion: the rule of the terrorists still operates in Northern Ireland.

It seems to me that despite the best efforts of the Minister and all those concerned, the Government have stood by and done very little for the past two and a half years. It will be worse if we acquiesce in this travesty of a Bill, containing a clause imposing abortion on demand on a people who have repeatedly said they do not want it.

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[Lord Murphy of Torfaen (Lab)]

I thought that the points made by the noble Viscount, Lord Brookeborough, were significant and came at an appropriate time, almost at the end of the debate. I know that there are very strong views on the amendments that came before the House of Commons yesterday, and which passed with large majorities. I have my personal views on those issues, but the point is that none of this would have been necessary had an Assembly been up and running. The legislation before us even tells us that if an Assembly is up and running by 21 October, it could still take the decision.

I understand the point made by the noble Lord, Lord Empey, and others, about perverse incentives—so that people say, “We can pocket this and then deal with other issues”. I understand all that. It is in the hands of politicians in Northern Ireland, though, to decide on abortion, same-sex marriage and other matters, if they decide to come to an agreement before the time in the first part of the Bill, which I support this evening. It is the Northern Ireland (Executive Formation) Bill: that is what it is about.

What troubles me is that there is an inconsistency in some of the arguments tonight about how the decision made by the other place—before us on Monday, in Committee—will somehow disrupt the whole talks process; that it will delay the formation of an Executive and an Assembly. But that is perverse, too. If we look at the Bill, obviously there are things that have caught the imagination of the media and others: abortion and same-sex marriage. However, in my 32 years as a parliamentarian I have never seen a Bill that has references to reports and debates in the way that this one has. It talks about issue after issue after issue—all of them significant. These include dealing with Troubles-related incidents, the Attorney-General, legacy cases, problems affecting gambling, issues affecting pensions—which the noble Lord, Lord Hain, and others have mentioned, and which I hope the Government will support on Monday—and the institutional abuse of children. There is also the tragic death of Sir Anthony Hart. But if we go through the Bill, those are all issues that should be devolved—every one of them. Yet, frankly, Parliament is losing patience. That is what is happening. I am not losing patience; I never did when I was in Northern Ireland.

Incidentally, on the issue of abortion, I always argued that that should be a matter for the Northern Ireland Assembly. I never took a decision on it when I was Secretary of State. I could have but I did not. But we have come to a stage where people are getting fed up: it will be nearly three years, by the time this Bill is enacted. This should now be an incentive to political parties in Northern Ireland and to the Government. The Government have not achieved the best on this issue, in the past few months.

[Baroness O’Loan]

I just want to ask the noble Lord a question. Can he explain why Sinn Féin should come back to the negotiating table, when it got what it asked for? Why should it come back? There is no reason whatever.

[Lord Murphy of Torfaen]

If Sinn Féin has the interests of Northern Ireland at heart, I will give a couple of examples of why it should come back. At the moment, outstanding issues in Northern Ireland include: compensation to victims of historical abuse; a strategy to deal with bovine TB; a decision to reduce the maximum stake on fixed-odds betting terminals; university tuition fees; the mergers of schools and hospitals; the reform of adult social care; pay rises for National Health Service staff; and the cruise ship terminal in Belfast. Issue after issue after issue has already been discussed. If Sinn Féin does not agree with that, it has to be pointed out to it, and that is for the Government and the other parties to do. If equal marriage and, obviously, the Irish language are the only issues that Sinn Féin is concerned with—everyone knows that the problems surrounding those issues are huge—then better if it is all a sham. If, at the end of the day, they are saying, “We’ve got what we wanted because the British Parliament has given it to us so we’re not going to bother any more”, there is no hope at all for the future—none. We can have an Assembly and Executive formed in Northern Ireland only if there is agreement.

Before the noble Baroness intervened on me, I was going to mention the position of the Government. The amendments introduced yesterday were not government amendments but, with such a big majority, clearly lots of MPs from different parties voted for those things. The Government should now be in a position to go back to Northern Ireland, talk to the parties—quite rightly since, as we have seen here today, some of them are really aggrieved by what has happened—and explain that more and more of this will happen unless there is a devolved Assembly and Executive. That is difficult, of course. There will be Brexit, a new Prime Minister and probably a new Secretary of State. There are the holidays, and then there is the marching season—all things that prevent progress on these issues.

I tell your Lordships one thing: if I had given up in 1997 when we were dealing with the Good Friday agreement because I did not think there would be an agreement, we would not have had one. The same goes for the other agreements that eventually followed. If we had thrown our hands up in the air and said, “We give up. We’re not going to deal with this. We’ll never get it done because the divisions are so deep”, nothing would have happened. Yet we got that Good Friday agreement. The current situation is a dereliction of duty by the parties in Northern Ireland, including Sinn Féin, that have not taken their place in the Assembly. That is part of the Good Friday agreement, but they are going against it and breaking it by not being Members of the Assembly or the Executive, and that should be pointed out to them.

Who will do the pointing out? There will, I assume, be a new Secretary of State, but I think there should be a facilitator—a George Mitchell; a chairman, if you like—at this delicate time, particularly when the Government are in chaos because of Brexit and new Prime Ministers. The point made by the noble Lord, Lord Empey, was very valid: everyone has to be involved in these talks. Only when you can bounce ideas, resolutions and suggestions off different people will they work.

I am not happy that we are in a position where we may not see an Assembly over the next few months—far from it. I chaired strand 1 of the talks on setting up the Assembly; I had to deal with every single detail of it, month in, month out, because it was so significant to the success of the process. I am deeply disappointed and distressed that we are nearly three years in and do not have an Assembly. But beware: if we say, “We’re not going any further with these talks”, we will have direct rule. I think my noble friend Lord Dubs and I are the only direct-rulers, as it were, in the Chamber today. I did not like the role I took: I was a Member of Parliament for a Welsh constituency taking decisions on behalf of 1.5 million people in Northern Ireland. It was not right that it happened then and it will not be right if it happens again. If there is direct rule, though, what we saw yesterday in the House of Commons will be repeated time and again on all the other issues that affect the people of Northern Ireland.

This is in the hands of the Government and the political parties in Northern Ireland. I accept the point about Sinn Féin and the fact that it has got one of its demands, but at the same time it is in the hands of the parties and the Government to resolve the issue as quickly as possible. Let us get an Assembly and Executive up and running in Belfast.

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[Lord Duncan of Springbank]

We can provide that information in a Written Answer. That would be helpful to the House. I will lodge it in the Library and write to the noble Lord so that he has that information.

[Baroness O'Loan]

The Minister has just told us that there are very few issues still dividing the parties. Since we are effectively being threatened in this Parliament tonight, can he tell us what those issues are?

[Lord Duncan of Springbank]

I do not think anything I have said this evening should be interpreted as a threat—not in the slightest. What I am trying to ensure is understood is that these are perennial issues which we are fully aware of. An Irish language Act and a culture Act, and how these might fit together, remain challenging issues which need to be resolved. There are other, smaller issues, but these can be addressed and achieved in the right safe space in Northern Ireland. That is the ultimate ambition. It must be done by those parties in Northern Ireland.

Going back to the earlier point, there are five facilitators, not six, and they represent current and retired civil servants, but I will provide the details. I am grateful for that very helpful clarification.

The important thing to stress is that the Bill itself is, at its heart, simple. Its ambition is sensitive and straightforward. However, we are actively considering both abortion and same-sex marriage, and how we can take this matter forward, reflecting, as we are, the significant majorities, voices and views of the other place. It is important that I touch upon the issues that have come from the other place, because they have dominated much of the discussion. We need to ensure that those amendments—

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[Lord Duncan of Springbank]

I certainly do not wish to curtail the ability of the Members in this regard, but noble Lords can lodge amendments just now. The Government have to actively engage to try to establish how they can move these matters forward. As I said at the outset, the challenge we face is that the amendments which have arrived with us have certain technical deficiencies.

[Baroness O'Loan]

I do not want to be difficult, and I thank the Minister for giving way. If I want to table an amendment, draft it on the basis of the Bill before us and then something different is produced, my amendment will be pointless. What about the report of the Constitution Committee, which said that law relating to Northern Ireland should not be dealt with in this rushed way, and that it is totally unacceptable?

[Lord Duncan of Springbank]

The noble Baroness has raised this point before, but I say again that we have received from the other place a very clear instruction and we will have to move forward within the constraints of the time available to us. I do not doubt that noble Lords will table amendments, and they will be part of a reconciled list at the time when we are having these discussions. We will seek to move them forward in a manner appropriate to this House, as we would do with any of these matters. That is our ambition. It is not our—

Northern Ireland (Executive Formation) Bill

Baroness O'Loan Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Trimble (Con)]

My Lords, I rise to support the amendment moved by my noble friend Lord Cormack for the reasons that he gave in moving it. It is very wise to give more time for this. I notice that he is suggesting 13 January instead of 31 October, which gives a couple of extra months, but I rather like the idea of putting down 10 April and reminding people that it is the anniversary of the making of that agreement, which, when it was mooted, was agreed to by referenda with substantial majorities. The effect of that has not gone away. It is generally assumed in Northern Ireland that that agreement provides the basis for the local Administration.

Unfortunately, others are trying to undermine the agreement. Indeed, the worst of those trying to undermine the agreement—thankfully, at the moment it looks as though they will be unsuccessful—are the European Union, the Irish Government and our own Government. That is precisely what they are doing. I shall not go into great detail, although I can do so. I have been scribbling on this subject and something might emerge shortly, so I shall not start at this stage. We are not into a filibuster yet but, if the need comes, I am prepared to engage at some length on what I have just said. Putting in the date that reminds people of the agreement might, I hope, be an incentive to those who should be working to restore the Administration so that we have no further need of this legislation. We know that, because of the length of the hiatus in the institutions, the hope is not all that great, but it is worth reminding people of this and perhaps giving somebody’s conscience a prick ever so slightly on the subject.

[Baroness O’Loan (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Trimble, who, as a Nobel Peace Prize winner, is one of the architects of the Good Friday agreement. I pay tribute to him for his tireless work for peace in Northern Ireland over so many years.

I am pleased to support the amendment to the Bill moved by the noble Lord, Lord Cormack. The final, real purpose of the Bill is to prevent an election to enable more time for the talks to take place. All these dates will do is to make further accommodation. The amendment is not inconsistent with the main purpose of the Bill.

I spoke at Second Reading, and since then thousands have told me of their concern. I will speak more of that later. If the Bill could pass to give effect to its original purpose, it would be better to extend the period because, apart from anything else, at present Northern Ireland is on holiday. For example, I was trying to call the Minister through the Northern Ireland Office this morning, but all the numbers seemed not to work. I could not get anyone, and my suspicion is that this is a public holiday in Northern Ireland and that is why I was unable to get him. That tells you something about rushing a Bill that will make such a profound constitutional change through your Lordships’ House this week. The talks seem to have been very difficult, but they are being conducted by the Government. They have been facilitated and enabled by the Government, and the Minister has told us how committed they are to these talks and the future creation of a Northern Ireland Executive, which would allow the Assembly to go back and give us a functioning Government. They are vital to our future. They are, in the context of Brexit, critical to the peace process and to the peace, stability and economic prosperity of the United Kingdom. I am very pleased to support the amendment moved by the noble Lord, Lord Cormack.

[Baroness Harris of Richmond (LD)]

My Lords, I regret to tell the Committee that the Liberal Democrats cannot support these amendments. Northern Ireland has already been without an Assembly, a devolved Executive and effective decision-making for far too long. We are only reluctantly supporting 21 October, as I have said, and our hope is very much that the Bill will not be needed at all.

As we have heard, there have already been nine weeks of constructive talks. Now is not the time to take that pressure off Northern Ireland’s political parties—in fact, we must keep the pressure on. We want devolved government restored to Northern Ireland as quickly as possible, and these amendments are not the right way to go about things.

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[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, the noble Lord, Lord Murphy, said that Parliament is losing patience. It is more serious than that. The people of Northern Ireland are losing patience with this process. In our Bill today, we seek to give a little more time—to extend the deadline that falls in August to October, with the potential for an extension onward to January. In so doing, we recognise the value of a deadline; it is required to ensure a consequence for those at the table if there is a failure. The first step, if there is indeed a failure, will necessarily be an election in Northern Ireland and thereafter, that step that none of us here would wish to take: towards direct rule.

My noble friend Lord Cormack puts forward his amendment in the correct spirit, as he always does in these matters. In many ways, I welcome what he is trying to do: he is exactly trying, as we have tried for some time, to give space for the parties in Northern Ireland to reach the necessary steps and conclusions to form an Executive. But there comes a point when you cannot keep kicking that can down the road. The parties in Northern Ireland must recognise that there can no longer be an absent Government, or a situation in which we here are called upon to do the bare minimum to keep ticking over the Government and governance of Northern Ireland.

I believe these deadlines give enough time for those parties to come together—and they are close together—and to reach the resolution they require. If they fail to do that, we will have to act. My right honourable friend the Secretary of State for Northern Ireland has today travelled back to Northern Ireland to try to move these matters forward. There can be no let-up in the pressure or, indeed, the presence. I welcome the contributions of all noble Lords in this debate and previous debates to try to move these matters forward. Ultimately, this is a matter for Northern Ireland. While I understand the sentiment behind the amendment —to give that little bit more time and that safety valve, should it still be required—unfortunately, I do not on this occasion believe that that will deliver. Only a deadline will deliver, and I believe that deadline should be sooner rather than later. I recognise the landscape in which these deadlines fall; it is not where we wish to be.

[Baroness O'Loan]

Is the Minister aware of what has happened with deadlines in the past in Northern Ireland, and that they quite simply do not work? Is he aware that the former chair of the talks, George Mitchell, said that there must be talking until they are ready to reach an agreement? That was the advice he gave to me when I was heading off as a peace envoy. We cannot set deadlines and expect peace to be made and talks and the Assembly to continue. Is the Minister aware of that?

[Lord Duncan of Springbank]

I am fully aware of that, but I am also aware of how long there has been no government in Northern Ireland, and that that cannot continue. It cannot continue because there are things that need to be done: not the issues being dealt with inside those rooms, but issues such as health, education, schools and agriculture—the list recited by the noble Lord, Lord Empey, during our last discussion on the Bill. The noble Lord, Lord Morrow, said the same thing. We cannot allow this to continue. What we need now is good governance in Northern Ireland. This is an opportunity for those parties, within the extension foreseen in the Bill, to deliver on that. If they cannot do so in that time there will be consequences, and we must address those sooner rather than later.

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[Lord Duncan of Springbank]

My Lords, I expect that in years to come constitutional scholars will study this debate and explore many of the arguments. I suppose that it is my purpose to return us to what I hope is the principal purpose of the Bill to which this particular amendment has been appended. This Bill aims to ensure that we can restore an Executive in Northern Ireland in good time. This is a noble aim, with which I think we all agree.

We ought to start by recognising that Members in the other place have already debated and voted on these issues. Of course, the Government agree that Parliament must be kept apprised of progress towards restoring an Executive in Northern Ireland. The Government has already responded to the concerns here by agreeing to bring forward to 4 September the date by which a report will be made.

In many respects, the key issue here—which a number of noble Lords raised, for perfectly understandable reasons—is the need to keep focused on what we are trying to achieve through the reports we are discussing today. That is to ensure that Parliament is kept abreast of the ongoing aspects of the talks in Northern Ireland. However, I have stood here on many occasions and said that it would be inappropriate for me or my right honourable friend in the other place to give a running commentary. That is for one simple reason: we must give a clear and safe space in which those negotiations and talks can unfold. It is perhaps not enough for us to simply say, “Nothing to see here, move on”. We need to recognise that.

The votes were close in the other place, so some noble Lords might argue that we should give Members there an opportunity to think again. However, it is important to point out that the closest vote of all was on the addition of fortnightly reporting requirements, which the Government lost—although noble Lords are not proposing that the other place should be asked to think again on that one.

These amendments tabled by noble Lords are broadly very similar to those already rejected by the other place. They would require the initial progress report, as well as fortnightly ones thereafter, to be considered by Parliament and be subject to an approval Motion. However—again—in many respects, each element of this has nothing to do with the situation in Northern Ireland, which has necessitated the Bill in the first place.

As we speak to one another and the people of Northern Ireland, it is important that we recognise that this Bill serves a principal and singular purpose, which is to ensure that we give an Executive the appropriate space to reform.

[Baroness O’Loan]

I thank the Minister for giving way. If the Bill serves a principal and single purpose, why are the other clauses being admitted to it and why are the Government supporting them? It seems to me that this contradicts the position that the Minister has just articulated.

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[Lord Adonis]

My Lords, the statement just made by the noble Lord would be deeply contested within Northern Ireland. One has only to look at the literature and the debate there. I respect the noble Lord’s point of view, but it is deeply contested.

As the noble Lord said, the decision was taken to locate the second university instead in Coleraine, a small town. The decision of the Lockwood committee was to close the Magee campus, but the then Northern Ireland Government thought that it would be a step too far. There was a modest increase in the number of places at the Magee campus, but no major new departments were located there—on the contrary, there was a reduction in their number. This has been a long-running issue since.

When I went to Derry, the business community and young people said to me that the single decision which would do more than anything to boost the economic and social life of that city would be the location of a dedicated university, for which there is masses of space, alongside an expansion of the number of places in the city by the University of Ulster.

These decisions are simply not being taken, but it is worse than that: the decision on the table to locate in Derry medical places at the University of Ulster has now been entirely stalled by the absence of an Executive and an Assembly. There are no medical places in Northern Ireland outside Queen’s University Belfast. The great city of Derry has no capacity to train doctors or medical staff to degree level, because there is no provision at the Magee campus of the University of Ulster.

The story becomes worse than that when one delves into the situation. A decision has been taken to expand the University of Ulster, which has campuses across Northern Ireland, but the greater part of the expansion is taking place not in Derry but in Belfast, with a hugely expensive relocation of the Jordanstown campus to the city centre—it is costing more than £200 million.

I raise these issues which are not being debated and discussed in Northern Ireland because there is no Assembly and no Executive. They are of huge concern.

[Baroness O'Loan]

My Lords, I declare an interest: I taught in the University of Ulster. I hesitate to interrupt, but one reason for the Jordanstown campus being relocated to Belfast is that the building infrastructure is not capable of being sustained and is not safe.

[Lord Adonis]

There may be very good reasons for such decisions being taken, my Lords, but that does affect the fact that there is no increase in the number of places in Derry. The focus of the University of Ulster is not in Derry. Its headquarters are in Coleraine. The big expansion in which it is engaged is in Belfast. Belfast is the only place in Northern Ireland that has an adequate number of higher education places. This issue is being systematically unaddressed.

As I have said, in the normal course of events, this matter should be addressed by the Northern Ireland Executive and Assembly; it is not. It is tragic for Northern Ireland that it is not. Each year where it fails to be addressed means that more young people have opportunities denied to them. It is therefore essential that this Parliament addresses the issue, particularly in the context of the economic and social situation in the city of Derry, which I think most noble Lords would agree is deplorable at the moment.

Derry has the highest unemployment rate in Northern Ireland and the lowest employment rate. Indeed, it has the highest unemployment rate of any city in the United Kingdom. When I met leaders of the business community in Derry, they said that the single decision that could do more than anything to boost job creation, confidence and the location of new businesses in Derry would be the building of a dedicated university in that city. So I think it is right that we address this issue. For as long as there is no Northern Ireland Assembly and Executive, this is going to be a burning issue of concern in Northern Ireland.

I look forward to the Minister’s assurance on two points if direct rule is going to continue for any length of time—and despite the assurances given earlier today, it looks perfectly possible that it may continue for some substantial period. First, will the Government unblock the decision about the creation of medical places in the University of Ulster’s Magee campus in Derry? Could that not be taken forward next year? What is stopping that decision? Secondly, if direct rule continues beyond September, as appears likely, will the Government give an assurance that they will look at the expansion of university places in Northern Ireland as an issue of urgency, so that more young people do not have opportunities denied to them? I beg to move.

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[Lord Trimble]

My Lords, looking at Amendment 10, the key thing I see is,

“offering a consultation with the people of Northern Ireland if no Executive has been established”,

by the date mentioned. It is really indefensible that we sit here acquiescing in the continued non-existence of the Northern Ireland Assembly.

I understand why my noble friend has put this amendment forward. I am slightly uncomfortable that the amendment is a bit passive—

“if no Executive has been established”.

One should really do more than just say, “We will do this if it happens, but we don’t appear to be doing much else to keep things going”. I know there is a talks process under way from time to time, and sometimes I hear people saying that they are very close and that things are going well. I very much hope that that is the case, but we have been here before and had negotiations that were getting very close—then some gentlemen whom we rarely see or hear anything from send their messages in and the landscape shifts considerably.

In an earlier debate, the noble Lord, Lord Murphy, referred to the fact that this is not just a matter of interest to Her Majesty’s Government but that another Government are involved. That brings back to mind the agreement we made nearly 22 years ago. That agreement had two elements to it: the multi-party talks, which happily came to a positive conclusion, and the agreement between Her Majesty’s Government and the Irish Government, which finds expression in legislation passed by this House. In that very short agreement, which I think had only two or three clauses, the first clause—the important one—contained a solemn undertaking by Her Majesty’s Government and the Irish Government to support the product of the multi-party talks; in other words, to support the steps we took towards the creation of the Northern Ireland Assembly and to support the Assembly itself.

I draw the attention of Her Majesty’s Government to the fact that they have an obligation to support the Northern Ireland Assembly. I do not think they are discharging that obligation. It is true that you have to proceed via agreement with the parties, but one must go further than saying, “We’ll leave it up to the parties”. That is not supporting it.

Since this unhappy situation came about, a number of Members of this House have made proposals from time to time about what could be done. I did that several times myself until I started wondering what the point was of trying to work up something that gives another way forward if there is no sign of any support coming from the sources from which it should come. Unfortunately, where there is an obligation on Her Majesty’s Government to support an Assembly—and, by extension, to support those trying to bring it about, even though that means going a roundabout route and applying pressure to various parties—there should really be more consideration from them about their obligation and how and when they will implement it.

Amendment 18 says that regulations,

“must be introduced if no Executive has been established”.

I know it is a bit premature to try to work out at this stage what the form of those regulations would be, but, if there is a legal obligation on the Government to introduce some regulations at that point, that is to be welcomed, as it might help accelerate the rather anaemic processes that are going on at the moment.

These are suggestions to think about, but I bring the Committee’s attention back to the fact that that agreement was made on the basis that there would be good faith from the Government in implementing it. They responded by making a solemn undertaking. I now invite them to fulfil it.

[Baroness O'Loan]

My Lords, I cannot endorse the words of the noble Lord, Lord Trimble, too strongly. He is absolutely right. Consultation is essential if Northern Ireland is to have any sense that there was integrity in the intentions of the Government in what they have done in the past.

As I have told noble Lords, over the weekend I received 15,000 signatories to my letter to the Prime Minister; I keep getting texts, and the number seems to be rising by a thousand an hour. There is another side to this that I do not think noble Lords are aware of. Given that Northern Ireland voted not to leave the European Union, if we move towards Brexit and we simultaneously move to direct rule, many of the unionists in Northern Ireland—my noble colleagues may contradict me—would reject that. They will want a Northern Ireland Assembly; we are capable of governing ourselves in these devolved matters.

I know from what is written that the nationalist people of Northern Ireland would reject it utterly. For them, it would be the end of the Good Friday agreement; it would be the end of support from the British Government for the institutions of the Good Friday agreement; it would imperil our peace process. Equally, it would create a construct within which the reunification of Ireland would become rapidly more likely. If Northern Ireland is not allowed to govern itself and space is not made for the talks which need to take place, direct rule, which has been a very bad thing for Northern Ireland, will inevitably follow.

I say to noble Lords with a heavy heart that, as the noble and right reverend Lord, Lord Eames, said on Wednesday, they are walking on very sacred ground as they contemplate these issues. It is not just about abortion; it is about the whole devolved settlement, the integrity of government and the future peace and prosperity of all four parts of the United Kingdom.

[Viscount Hailsham]

My Lords, I rise very briefly to speak about Amendment 18A, a manuscript amendment standing in my name which forms part of this group. The sole purpose was to ensure that Parliament is sitting between 22 October and 31 October this year. The reason for that was articulated in the previous debate promoted by the noble Lord, Lord Anderson: to prevent an improper Prorogation of Parliament, for the reasons the noble Lord discussed. It has been grouped with these amendments. I have absolutely no intention of standing in the way of regulations to permit same-sex marriage. That is not my purpose. It was a procedural amendment, and your Lordships will doubtless be pleased to know that I do not intend to repeat the arguments I made in the previous debate or in any way to seek to bring forward for your Lordships’ active consideration Amendment 18A, because that matter was resolved in the second debate this Committee has had today.

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[Baroness O'Loan]

If that is the case, why was the amendment in the other place drafted in the way that it was, which was asking the Secretary of State to do this? There is no international obligation, legal or otherwise, to introduce abortion.

[Baroness Harris of Richmond]

But Parliament is sovereign and so it will make that decision itself.

[Baroness O'Loan]

I did not intend to imply in any way that Parliament is not sovereign, but there is no obligation under European law or international law to introduce abortion.

[Lord Deben (Con)]

My Lords, from time to time we have to distinguish between what is utterly true, which is that Parliament is sovereign, and the particular circumstances in which that sovereignty is actually exercised. I am in the position of having been a passionate supporter—contrary to the views of the church of which I am an active member—of same-sex marriage. I do not think that anyone can suggest that I am holding things up because of my views on this. I happen to take a different view from the noble Baroness, Lady Harris, on abortion—perhaps that puts me into a rather special circumstance on this particular issue.

But I want to say to the noble Baroness that it is very difficult for any of us to get inside the minds of many people in the north of Ireland. That is a fact. We face a wholly different community from the communities to which most of us belong. That is true of people of all denominations, as a matter of fact. It is not an easy place to be. The difficulty that we have had of re-establishing devolved rule only shows how hard it all is. I have to say to my noble friend that many of us would like to see more signs of activity from the Government and the Secretary of State. I would like to feel that this was being pressed in a more active way than seems to be true—but perhaps it is being pressed and we do not know, so I do not want to carry that criticism too far.

But I beg people not to think that it is merely a matter of asserting the sovereignty of this Parliament to put through two changes in which they passionately believe—I passionately believe in one and passionately do not believe in the other. It is not just a matter of asserting our sovereignty. That is not how every community in the north of Ireland will see it. It will be seen as us deciding what we think is good for the Province.

Now I find that attractive because I very often want my opinions to be carried through more widely than they are. But we have already stretched the connection between us and the north of Ireland to breaking point over Brexit. I do not want to get into the nonsense that we have actually tried to carry through on Brexit when we ignored the problems of Ireland while going on about Brexit. We have already stretched that connection and are now suggesting that we stretch it even further. As the noble Baroness, Lady O’Loan, so remarkably put it, we are moving into a position in which false moves from us will change the whole nature of Northern Ireland.

There are those who want that and would see it as a benefit. But anyone here who cares about the unity of the United Kingdom should look very carefully at putting their perfectly reasonable personal views in front of the right of the Province to make up its own mind. After all, we specifically gave a series of things to Scotland, Wales and Ireland for people there to make up their own minds about.

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[Baroness O'Loan]

I thank the noble Baroness for giving way. She talked about the nature of comments and said something about a noble Baroness making a comment. I would like to know who and what she was talking about.

[Baroness Smith of Basildon]

I was referring to the comments made by the noble Baroness, Lady Boycott. She said she was upset about some of the comments that had been made in the debate, and I respect the comments she made in that regard. I think she was right to make them.

Coming back to the point about whether this is procedurally correct, as somebody who has spent more hours than I might care to discussing this with clerks or colleagues, I can say that if the matters before us were not procedurally correct, they would not be debated by this Committee today. All matters before us are procedurally correct. The noble Lord from the DUP made the point that the provisions on abortion and same-sex marriage were not supported by Members of Parliament from Northern Ireland. I regard every single Member of Parliament as equal to every other. Each Member has a duty to consider the position of the United Kingdom as a whole. We have a Conservative Government, supported by Members of Parliament from Northern Ireland of a different political party, who presumably vote on issues affecting the whole of the UK. I would not criticise Members of Parliament who vote on issues that affect other parts of the United Kingdom, because all MPs are equal.

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On abortion, there are strong opinions on either side which must be respected, but I struggle with the notion that in Northern Ireland a victim of a violent rape who has an abortion faces a harsher penalty than her attacker. I find that quite chilling. The position at the moment does not stop abortions happening. If it was possible to reduce the number of abortions, I would be pleased to support that, financially and otherwise, but that is not what the amendments would do. More than 1,000 women and girls now travel to England and Wales for abortion, in addition to those who take illegal abortion pills bought online.

[Baroness O'Loan]

I do not think it is quite right to say that huge numbers of women are being raped, become pregnant and are imprisoned because of breaches of the law. That is not what is happening in Northern Ireland. Yes, we have some women who are raped. Undoubtedly, some of them will get pregnant. Northern Ireland needs to sort these things out for itself.

[Baroness Smith of Basildon]

I think the noble Baroness misunderstood. I agree that Northern Ireland should sort it out, but a victim of violent rape who becomes pregnant and seeks an abortion faces a harsher penalty than her attacker. That seems quite wrong.

The House of Commons has voted on two issues, with substantial majorities. On Wednesday, we will have an opportunity to look at how the Government have responded to Conor McGinn and Stella Creasy; the noble Lord, Lord Hayward, will be bringing it here. We look forward to seeing what will happen. This debate has highlighted how sensitive this is, and that there are intransigent different points of view which I think cannot meet. We must do what we believe is right.

Northern Ireland (Executive Formation) Bill

Baroness O'Loan Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Bruce of Bennachie]

My Lords, I had no hesitation in signing the amendment, and was proud to do so. Like everybody else, I commend the noble Lord, Lord Hain, for the deep persistence and commitment that he manifests every time he speaks on this subject. It is somewhat disturbing to think that it is 21 years since the Troubles ended: these people have suffered for decades. Although there is consensus across the piece that the pensions should be delivered, it still has not happened. This is a point at which we can set down a mark of real commitment to recognise, while those people can still benefit, that we can do something about this.

Our debates today should give Northern Ireland politicians real cause for reflection. Increasingly, this House is discussing any and every issue relating to the people of Northern Ireland, because there is no Assembly or Executive to do it. They should be asking themselves, “Why aren’t we delivering this pension? Why aren’t we delivering better healthcare? Why aren’t we doing it?”. I agree with the noble Lord, Lord Hain, that the things that appear to divide them do not seem, to us living on this side, to be the issues that the people of Northern Ireland want to unite them—such as dealing with the day-to-day issues and compensating people for their past suffering.

The amendment is simple, crisp and clear. If it is deficient in terms of a money resolution, the Government have the capacity to do something about that, and I hope they will feel able to do so. I commend the Minister, because every time this issue has been raised he has demonstrated total commitment, understanding and engagement—and frustration, perhaps, that the technical difficulties seem to get in the way. I hope that he has been able to cut through them and can give us a positive answer now.

[Baroness O'Loan (CB)]

My Lords, I want to add a brief word to what the noble Lord, Lord Hain, and others have said. Unfortunately, many of us have seen, met, worked with and tried to help people whose lives have been shattered by bomb and bullet. I thank the Minister because I understand that he is considering this idea: I am sure the Government will find the money to pay these pensions to such a very small number of people. I want us to remember, particularly, the children. There are many children living in this situation—second generation, perhaps, from the actual victim of the shooting or bombing—and they may well act as a carer for their grandfather, uncle or father. That is a very difficult life, and they are subjected to the risk of transgenerational trauma, of which there is a significant incidence in Northern Ireland. A pension would allow for a carer, which might set some of those children free.

[Lord McCrea of Magherafelt and Cookstown]

My Lords, in his introductory remarks the noble Lord, Lord Hain, talked about the Assembly. I say to him simply that he knows that there is one party that had three red lines before it would enter the Executive. No other party put down red lines; it was one party and one party alone. Every other party in the Northern Ireland Assembly was willing, and is willing, without red lines, to enter that Assembly and deal with the matters that the noble Lord, Lord Empey, has already mentioned. Across the Committee, many Members have expressed not only appreciation but support.

I wonder how many people in the Committee know what it is to be in the family of an innocent victim. I stand in this House not to express somebody else’s pain—although as a Minister, I, like the noble Lord, Lord Eames, went to home after home. Hundreds, even thousands, of families have experienced the anguish and pain.

Last weekend, on the evening of 12 July, I entered the home of a couple in their late 70s, both seriously ill. A boulder was thrown through their window into their bedroom on 12 July in broad daylight, and they were terrorised. Tonight they cannot sleep. In actual fact it took them back 20 years, because 20 years ago that same couple were, like a group of other Protestant families in Beatrice Villas in Bellaghy, forced out of their home by the IRA. They had to leave that home 20 years ago and now, 20 years on, with one of them in their late 70s and one 80, they are faced with that terror again.

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Moved by

[Baroness O'Loan]

23: After Clause 9, insert the following new Clause—
“Requirement for majority of MLAs to support regulations
(1) Before a statutory instrument can be laid in each House of Parliament under sections 8 and 9 of this Act, the conditions in subsections (2) and (3) must be met. (2) The first condition is that the Secretary of State must—(a) hold a public consultation on the proposals in each of the regulations;(b) consult individually with members of the Northern Ireland Assembly on the proposals in each of the regulations; and(c) lay a report before each House of Parliament on the outcome of the consultations held under this section, including the number of members of the Northern Ireland Assembly in favour of and against each of the regulations.(3) The second condition is that—(a) the relevant regulations under section 8 may only be laid before Parliament if a majority of the members of the Northern Ireland Assembly support the regulations as stated in the report laid before Parliament under subsection (2)(c); and(b) the relevant regulations under section 9 may only be laid before Parliament if a majority of the members of the Northern Ireland Assembly support the regulations as stated in the report laid before Parliament under subsection (2)(c).”

[Baroness O'Loan]

My Lords, I rise to speak to the amendment in my name and that of the noble and right reverend Lord, Lord Eames, the noble Lord, Lord Hay, and the noble Lord, Lord Alton, who cannot be with us tonight. This Bill had such a simple purpose: to allow the Secretary of State not to call an election and extend the time for agreement to be reached between the parties. That was all it had to do. I guess that was why the Government fast-tracked it. The consequence is that we do not have the usual time for consideration and now the Bill has been extended in a way which is unacceptable and which has the potential to do massive damage to the talks and any prospect of getting the Northern Ireland Assembly up and running.

The Bill has two odd sets of amendments—the ones which we discussed at length earlier this afternoon about Brexit, no deal and the Prorogation of Parliament, and those to do with abortion, neither of which should be in the Bill—and then it has the Christmas tree effect. I do not say that in a pejorative way. These are all very real issues which may need to be dealt with by a Northern Ireland Government.

It has been a curious debate. We have heard the Minister say that we cannot deal with medical schools at Ulster University, Magee, and that we cannot deal with a no-deal Brexit, but we are here to deal with this very sensitive issue in Northern Ireland. I have listened carefully, but I do not feel that there is an understanding of Northern Ireland. We are in a very delicate place. We all agree that we want our Assembly back, but this Bill, if passed in its current form, would also have the capacity to prevent that. We cannot underestimate the fragility of the Northern Ireland situation. I am always reminded that peace agreements last, on average, for 15 years. We have had our 15 years, and a few more. We are in a very difficult place. I know that Brexit is important, but, as I said in your Lordships’ House three years ago, the border and all that goes with it has the capacity to undermine everything, and that would be very dangerous indeed.

Part of this Government’s credibility rests on the extent to which they are regarded in the conduct of these talks as an honest broker. The Government’s response to these amendments does not seem to respect their obligations under the Good Friday agreement and other issues. It seeks to make a profound change in our law at a time when Northern Ireland is engaged in negotiation. It seems very odd that the Government, who are not charged with the conduct of these negotiations and who have seen attempts to kill police officers and others, who have seen the bombs and the ongoing bubbling of terrorist activity, are not a little more cautious in their outlook. The Minister spoke earlier of the need for clear space and safe space for the negotiations. I do not think that is happening here today.

It does not matter what one thinks about abortion and same-sex marriage or whether the law should change. Nobody doubts the sensitivity of these issues for those affected by them, but the clerks in another place advised that these issues fell outside the remit of the Bill. Each of these amendments represents a huge issue which should be the subject of a Bill in its own right, subject to prior consultation and then careful and measured consideration, with scope for amending the legislation. None of this has happened. There are options for everything that is being suggested here. There is a variety of different laws across Europe, even in the context of abortion. In many states, it is only permitted up to 12 weeks, with very rare exceptions; it is not necessarily the liberal law that the United Kingdom has.

The clause as drafted is, of course, unworkable. The Secretary of State has no power in the Northern Ireland Act to make the regulations requested by the amendment. Moreover, the law must be capable of being understood, yet what is proposed here is not clear. The Northern Ireland Attorney-General has spoken publicly about the difficulties generated by this clause, which is vague and goes beyond the Abortion Act 1967. Neither the Northern Ireland Assembly nor any Minister has the power to repeal the Offences against the Person Act by regulation; it is just nonsense. Also, based on this Bill, it is not clear what legislation or directions would say. We do not usually legislate for what we do not know.

The Government have said that they will make it work. Are they going to amend the Northern Ireland Act? What is going to happen? Parliamentary rules cannot be set aside without risking damage to our constitutional arrangements. To make matters worse, these amendments were accepted in relation to a Bill that is subject to a fast-tracking procedure that, even without these far-reaching and completely out-of-scope provisions, but simply on the basis of the Bill’s original purpose as introduced, must attract the attention—perhaps the censure—of the Constitution Committee, which last week reported that Northern Ireland Bills should not be fast-tracked unless they are really urgent. There is time to get this Bill right, and to get our talks back in action.

Many thousands of people in Northern Ireland are distressed by this. It is well known and has been said in your Lordships’ House that ComRes polling of Northern Ireland adults shows very clearly that people in Northern Ireland do not want abortion law changed from Westminster. That is the clear view of 64% of people, rising to 66% of men and 72% of 18 to 32 year-olds. Yet 332 MPs representing seats from outside Northern Ireland saw fit to vote for it, and 100% of Northern Irish MPs in the other place voted against it. Noble Lords should think about that.

Apart from the issues at hand, think of the utterly appalling precedent. The Minister told us last Wednesday that there is more to come. I appreciate this crisis is not of the Government’s making, but they are now engaged, whether they like it or not. Their response can have the effect either of ameliorating or exaggerating the difficulty, with all that means for the union.

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[Viscount Younger of Leckie]

May I just inquire whether the noble Baroness is listing all the names on her list? It would be helpful for the Committee, with the hour that we are at, if the list could be severely shortened.

[Baroness O'Loan]

The Reverend Norman Hamilton has worked on the interface in north Belfast for 20 years, and hundreds of clergy and ordinary people—doctors, nurses and lawyers—all signed, from all sides of the community. They wanted one thing: to be respected as people and to allowed to make their own law on this amendment. That shows how concerned people are about this matter.

My amendment would not prevent legal change on either abortion or same-sex marriage. It would simply have the effect of restoring some constitutional integrity to Northern Ireland. It requires that there should be a consultation with the people of Northern Ireland, as there would be with any legal change on either issue in Northern Ireland, and most importantly that the views of the currently elected Members of the Northern Ireland Assembly be recorded for or against any regulations and that the regulations should not be laid before Parliament if they do not receive majority support from those Assembly Members. One thing I have not done is to introduce anything resembling a petition of concern, about which I think the noble Baroness, Lady Smith, spoke earlier. The legislation could pass by a simple majority.

One thing I noticed this afternoon was that the unborn child was largely absent from the debate. When mentioned, there was in some quarters a rolling of eyes and expressions of contempt. Yet it has to be said that abortion is about killing babies—real babies. Without Amendment 23, the Northern Ireland (Executive Formation) Bill will go down in British constitutional history as one of its blackest moments of all times, when constitutional due process was completely swept aside because of the conviction of parliamentarians, none of whom represents Northern Ireland, that the end justifies the means. That is never a good place to be. We have heard it said that it does not really matter at all if Northern Ireland’s MPs voted against this, because it is a matter of human rights and if you want to be in the UK you have to accept abortion as a human right. There is no human right to abortion, and I think that is slightly contemptuous of Northern Ireland’s MPs.

The Member for Walthamstow, who introduced new Clause 10 in the Commons, said this morning that this is an attempt by the DUP to hold us all to ransom. At this late hour, I perhaps need to assure noble Lords that I am not a member of the DUP. I am a Cross-Bencher and, as far as I can remember, the noble and right reverend Lord, Lord Eames, is not a member of the DUP either. This is something that a cross-party group of 16,000 people are asking us not to do. This is the truest cross-community co-operation from all sectors of our community, from all sides, all places in our beautiful country. We have agreement that we do not want abortion railroaded through in the Bill. I ask noble Lords to at least grant Northern Ireland MLAs the courtesy, the respect and dignity of their roles as elected members and allow them to present their views on this matter. I ask noble Lords to give the people of Northern Ireland the same respect and provide for consultation. I beg to move.

[Lord Shinkwin (Con)]

My Lords, I support Amendment 23 and I pay tribute to the noble Baroness for persevering despite her sore throat and inspiring those of us who support the amendment. I support it because I believe it underlines our respect for devolution and for the people of Northern Ireland, a clear majority of whom, polling shows, as we have already heard, do not want law changes imposed on them by us here in London.

I also support it for another reason. I do not take a position on abortion per se; I do, however, take a position on disability equality. What is proposed in the Bill drives a coach and horses through disability equality. I wonder whether my noble friend the Minister—indeed, whether anyone in the Government or in No. 10—has considered the message that changing the law to allow abortion on grounds of disability in Northern Ireland sends to the people of Northern Ireland, to the devoted parents and families of disabled children and, most importantly, to the disabled citizens of Northern Ireland. Today, Northern Ireland is the safest place in the United Kingdom to be diagnosed with a disability. If the Bill is passed, that will change overnight on 21 October.

I invite noble Lords to consider the Bill from the perspective of someone with Down’s syndrome. In England and Wales, the latest available figures show that 90% of human beings diagnosed with Down’s syndrome are aborted. Today, in Northern Ireland, disability-selective abortion for Down’s syndrome is not allowed. Instead, the culture is one of welcome and support for this disability. The latest figures from the Department of Health in Northern Ireland showed that while 52 children with Down’s syndrome were born in 2016, in the same year only one child from Northern Ireland with Down’s syndrome was aborted in England and Wales.

I ask my noble friend the Minister: is that not a cause for celebration? Is it not to Northern Ireland’s immense credit that disability equality is actually respected there? He may be aware that next year will mark the 25th anniversary of the most important social justice milestone of the 20th century for disabled people: the Disability Discrimination Act. A Conservative Government introduced it. How does he reconcile the Act’s acknowledgement of the right of disabled human beings to be equal, to contribute to society and to be respected with the message of the Bill, which is that if you are born with a disability, as I was, you are better off dead? For that is its message to disabled human beings, their families and the people of Northern Ireland.

That is why it is so sad that the party which swore to respect Northern Ireland is driving roughshod over the clearly expressed views of the majority of its people to impose lethal discrimination on grounds of disability and to treat human beings diagnosed with disability before birth as less equal. How terribly progressive, my Lords.

I wonder who has the greater learning disability here: those who seem intent on denying the equal right to exist to those such as human beings with Down’s syndrome or those, especially in my party, who appear determined to unlearn the lessons of the Disability Discrimination Act.

I was born disabled; I will die disabled. That is the hand I have been dealt. Indeed, it is the hand that most of us are likely to be dealt before our days are done. Are we seriously saying, as we near the end of the second decade of the 21st century, with all the amazing advances in medicine and technology, that we are so regressive, so insecure as a species, that we cannot cope with disability?

Various commentators report that the Prime Minister wants to leave a strong legacy. I am sure I am not the only Member of your Lordships’ House who will remember her speech committing herself and her Government to ending burning injustices. I will therefore take the opportunity to urge her not to create a burning injustice by allowing the abortion of human beings diagnosed before birth with conditions such as mine to be part of that legacy. If she does, no one in my party should be surprised if disabled people and their families think that the Conservative Party hates us and believes that we would be better off dead.

In conclusion, there is a clear choice to be made, and not just by my party. The choice is for disability equality or inequality. I implore all noble Lords who believe in genuine equality to stand with disabled human beings in Northern Ireland and respect them, and devolution, by supporting this amendment.

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[Baroness Barker]

My Lords, lest people watching this debate take from it a one-sided view, I want to say that in 2018 an international poll was taken in Northern Ireland which showed that 68% of the respondents did not believe that people should be criminalised for having an abortion and that, if necessary, action should be taken in Westminster to make sure that that happens. The Northern Ireland Life and Times Survey also showed that 89% of people in Northern Ireland believe that no one should go to prison for having had an abortion. It is a poll run by, among others, Queen’s University, Belfast. I know that the noble Baroness, Lady O’Loan, relies on the ComRes polls; people on her side of the argument always do. However, they are not the objective views that she might lead noble Lords to believe.

I have to say that, coming at this stage, the proposals in her amendment suggest that these matters can effectively be blocked by Members of the Assembly. That is what the power in her amendment would do.

[Baroness O’Loan]

I thank the noble Baroness for giving way. Will she explain when, before this time, I could have raised the amendment?

[Baroness Barker]

I am suggesting that these matters could have been put before Members of the Assembly. Indeed, as has been said, they have already been put before the Assembly, which failed to move them forward. I return to the point I made in earlier speeches. At the moment, there are people in Northern Ireland losing hope because no one is expressing views about the things affecting their lives. The amendment simply returns those people to a counsel of despair.

[Lord Hayward]

My Lords, I will briefly follow the noble Baroness, Lady Barker, and echo what she said about blocking amendments. I take the point made by the noble Baroness, Lady O’Loan, about time pressure, but there is what one might describe as somewhat unparliamentary or unlegislative language in the first condition. The amendment then goes on to refer to,

“the proposals in each of the regulations”—

in other words, you consult on each regulation individually with each of the MLAs and other people. Therefore, the effect of this amendment is not to have a broad consultation. In reality, it is a blocking amendment. That is the only way this can be read, even if one reads it as having been drafted in the inevitable speedy circumstances to which the noble Baroness, Lady O’Loan, referred.

I was trying to be helpful on the previous amendment. On this amendment, I am afraid that I find myself looking at what I regard as nothing more and nothing less than a blocking amendment.

[Baroness O’Loan]

Does the noble Lord not recognise the difference between the people of Northern Ireland having some form of consultation with their elected representatives and a blocking amendment? This is not a blocking amendment.

--- Later in debate ---

[Lord Duncan of Springbank]

If this House divides, it will be a matter of conscience. If this House divides and takes a different opinion, we will send that opinion to the other place. On that basis, I hope the noble Baroness will withdraw her amendment.

[Baroness O’Loan]

My Lords, I thank noble Lords for their contributions. I particularly thank the noble Lord, Lord Shinkwin, for a magnificent defence of those who are disabled even before they are born. As I said, I have listened carefully. I alluded to the timescale of this Bill. Second Reading was last Tuesday in the Commons; we got the amendments here on Wednesday morning. We have had a few days when Northern Ireland has been off, and now we are forced into a position in which we still do not have the government amendments for the day after tomorrow that are going to make this unworkable Bill workable. We have very little time to reconsider, think, contemplate and consider what the Government are suggesting. How terrible that the future of a generation of unborn babies should rest on these few hours in this place or the other place. I beg leave to withdraw the amendment tonight, but I reserve the right to return to the issue in future.

Amendment 23 withdrawn.

Northern Ireland (Executive Formation) Bill

Baroness O'Loan Excerpts

Report stage (Hansard): House of Lords
Wednesday 17th July 2019 Lords Chamber

I hope that the noble Baroness, Lady Barker, will accept this amendment to her amendment, which puts in the affirmative procedure. With that, I leave the debate to the rest of the House.

[Baroness O’Loan (CB)]

My Lords, this is a strange Bill, and it seems to get stranger as we go along. Clause 9, we were told, was not workable. As the noble Lord, Lord Steel, said, the Government indicated repeatedly that they were going to bring amendments which would remedy the defects in Clause 9. What we have now, I am afraid, is equally lacking in clarity, although it contains more subsections.

I will say at the beginning that this is not a Bill in a situation of grave emergency. There are no human rights judgments that require action by the Government in the absence of the Northern Ireland Assembly—and even if there were, there would be no obligation on us to act. We do not always act in accordance with the Supreme Court. I do not know how many of your Lordships have sat and read the CEDAW recommendations in this report. They are interesting, in part, because proposed new subsection (2) states that we will repeal Sections 58 and 59 of the Offences Against the Person Act, but it does not seem to deal with all the consequences of that. I will come back to that later. I look forward to hearing why there is no government amendment that would really put it right.

I will ask the Minister some questions about proposed new subsection (1) in Clause 9. Recommendation 85 requires the repeal of the Offences Against the Person Act. They require some form of legislation to enable abortion, and a moratorium on the application of criminal laws concerning abortion. What does this mean? Does anybody know what it means? It is obviously separate from the Offences Against the Person Act. What is the difference, and to which criminal laws does it refer? I wonder whether it refers to the Criminal Justice Act 1945, of which noble Lords will be aware, which prevents infanticide. Will the Minister tell me exactly what we are doing as we legislate to give effect to recommendation 85(c) on this moratorium on the application of criminal law.

There are many other issues in recommendations 85 and 86 which we are adopting wholesale. I am not sure whether all noble Lords are familiar with them. Some of them are a bit odd. One says that there must be access to contraception freely. In Northern Ireland we have something which possibly does not apply to the rest of the United Kingdom. We have free prescriptions for everyone. No mother, no matter her personal circumstances, is precluded from getting free any contraception that she requires.

I do not want to hold back your Lordships too much. Proposed new subsection (2) seeks to abolish the Offences Against the Person Act. Have noble Lords considered what this means and what they will vote for? It means the removal of all restrictions—as I understand it—on any abortion for any reason at any time up to 28 weeks. The most recent medical information which I have been able to find tells me that babies born at about 22 weeks of gestation had a 50% survival rate in 2008. Medical science has advanced considerably since then, so that even smaller babies are surviving. Will we have a situation in Northern Ireland, even for a few months, where abortion on any grounds, in any place, for any reason, without any protections is available? I suggest that that is not safe and I will come to the reasons why later.

It is not the law here, where abortion is available only up to 24 weeks. We know that about 30 babies a year aborted in that situation are born alive—presumably because some doctor failed to make sure that it did not happen—and they are left to die. I am not sure that Northern Ireland wants that situation, even for a matter of months. What will the regulations that give effect to proposed new subsection (2) actually do? We do not know. They may be very much wider than the laws which apply here. Is this what your Lordships want? The laws which apply here are now regarded by many as unsatisfactory because of the advances in medical science and the care of children.

There is no limitation at all on the scope of the regulations in Amendment 12. Although we do not know what the regulations will do, or how they will do it, we know that for months there will be no requirement for abortions to be performed in a safe place, and no legal protection for the freedom of conscience of practitioners—a huge issue for them.

I will not articulate all the defects, but perhaps I will give one more. In the situation which will result from Amendment 12, Northern Ireland will become a rather more perilous place, particularly for pregnant young women whose husbands or families want them to have an abortion for whatever reason when they do not have the time, space or capacity to say no.

Parliament is currently considering domestic violence legislation. Abortion is one of the major issues in the world today. It is a major issue here in the United Kingdom. Article 39 of the Istanbul convention—the convention on preventing and combating violence against women and domestic violence—requires us to have a criminal provision to prevent forced abortion and to deal with it as a criminal offence. The Offences Against the Person Act is used in that connection. For example, a man who wanted his wife to abort the baby that she was carrying was convicted under that Act of putting abortion pills into her drink to ensure that she would abort.

I am trying to say that I accept that noble Lords are well intentioned, but there are huge gaps in Amendment 12, which are dangerous for women in some ways. We have had 16 hours to look at the amendment; it should have taken much longer and we should have allowed proper consideration of these matters, in the normal manner. Even if your Lordships are still minded to ignore the Sewel convention and all the other issues relating to devolution, legislating for lacunae, as Amendment 12 does, is possibly irresponsible.

Brett Lockhart QC is a leading member of the Bar in Northern Ireland. He said that the absence of regulations between October and January would be legally chaotic and would have significant implications for quality assurance, et cetera. Moreover, the extent to which the current guidelines would have any impact on the new legal situation remains entirely unclear. Can the Minister assure us that there will not be legal chaos in Northern Ireland for months—and possibly longer if things go badly wrong in the process of trying to get this together? I ask noble Lords not to rush into legislating in this way. It cannot be said to be fit for purpose.

[Lord Morrow]

My Lords, in speaking to the suite of amendments in the names of the noble Baroness, Lady Barker, and her co-signatories, I want to engage with two points. The first relates to due process and how we must understand these amendments in terms of the broader approach adopted by Westminster to the Bill. The second relates to the impact of the amendments themselves. In approaching the amendments, we must remember that the Bill has become distorted as a result of our dispensing with constitutional due process. That was seen in the dispensing of scope and the insertion into a Bill of matters that should have been the subject of Bills in their own right—a Bill that was subjected to fast-tracking and without regard to the recent vote of the Northern Ireland Assembly.

The issue of scope is raised in the amendments but, to understand its significance, we need some context. It is noticeable that, in the other place, two amendments were laid that sought to change the law on abortion. Proposed new Clause 5 sought to create a new regulation-making power for the Minister with respect to changing abortion law in Northern Ireland. Proposed new Clause 10 required the Secretary of State to use powers already invested in her through Section 26 of the Northern Ireland Act 1998 to make regulations on abortion with special regard to our international obligations. The clerks ruled that both amendments were outside the scope of the Bill and should not be selected because they sought to change the law on abortion. The Speaker, however, caused great shock by dispensing with this advice and selecting proposed new Clause 10, although he did not select proposed new Clause 5. Although proposed new Clause 10 was not in scope, proposed new Clause 5 was more seriously out of scope in that it would have created a new, independent, free-standing regulation-making power with respect to abortion.

Proposed new Clause 10—now Clause 9—is actually more out of scope than it need be on account of its flawed drafting. Properly drafted, it should require the Secretary of State to make orders rather than regulations. Those orders could have been used to address problems that the Member for Walthamstow articulated when making her speech; for example, regarding prosecutions. Subject to the identification of suitable powers, orders could require a much more restrictive approach to prosecutions or police involvement and, on the same basis, the making of subordinate legislation to give colour and detail to such matters as information, detailing the circumstances in which the termination of a pregnancy can occur. Amending Clause 9 to bring it within the scope of the Bill would also have the benefit of giving the Bill more integrity because it would sit much better with the abortion requirements in Clause 3(8), which require that a review of abortion law in Northern Ireland be conducted and that proposals for changes in the law be considered. This is entirely incongruous with any attempt to read Clause 9 as introducing a radical change in the law.

--- Later in debate ---

[Baroness Smith of Basildon]

This House has no remit over what the other House says is in scope, but I am sure the clerks and the Speaker would act in a similar way. Perhaps I can help the noble Lord, Lord McCrea—

[Baroness O’Loan]

I always thought that the scope of the Bill was articulated in its Long Title, which in this case does not refer to abortion. Therefore, I do not quite understand why there is such a rejection of the question of whether these are proper matters for the Bill.

[Baroness Smith of Basildon]

I refer the noble Baroness to the Companion and the Standing Orders of the House: if an amendment is accepted by the clerks, it can only be accepted if it is in scope of the Bill.

I will try again to reassure the noble Lord, Lord McCrea, who sounded quite suspicious of the Minister. Drawing on my experience as a Minister, if I was responding to a debate, whether in Committee or on the Floor of the House, if I was going to be asked questions, I would always ask those who had them, “Can you let me know them before?” If you are to have an informed debate and make an informed decision at the end of it, you need to be able to answer those questions. That is something I do regularly for Ministers to this day when I speak at this Dispatch Box. If there are questions I want answers to, I do not want the Minister at the end of the debate not to have had time to find them—I want them during the debate. It was courteous of the noble Baroness, Lady Barker, to let the Minister know what those questions were so that he was able to inform today’s debate and let us know the answers. It is good practice and helpful to your Lordships’ House to have that made available to us.

On the matter itself, we have had a long debate about whether abortion is appropriate and whether people support or oppose it, and so on. That is not what is before us today. The House of Commons, on a free vote, as it is in your Lordships’ House, voted by 332 to 99 on an amendment to say that there should be safe and legal abortions for women in Northern Ireland, as there are in the rest of the United Kingdom. There is an obligation on Parliament to act, under international and domestic law, to assure such access to free, safe and legal abortions.

If we rejected this today, it would not cut the number of abortions at all. At the moment, as a result of the laws in Northern Ireland at present, we see over 1,000 women and girls from Northern Ireland travelling to England and Wales—and now, as we heard from the noble Lord, Lord Alderdice, to the Republic of Ireland. However, we also find—this is one thing that worries me enormously, particularly as technology moves on—that women risk their life and liberty by illegally buying abortion pills online, which they then take without any medical expertise or support, and they will often delay seeking care if there are any complications. In doing so, they risk their life and their liberty—they could go to prison. Today the Minister is trying to give effect to what was agreed in the House of Commons.

I will say something about the Minister’s comments in his reply to the noble Baroness, Lady Barker. His explanation of and reassurance on regulations was welcome. There have been concerns about this issue, and he dealt with it with enormous sensitivity. He will understand that some were sceptical about the reasons for having a longer timescale—the point my noble friend Lord Dubs made—than for same-sex marriage. I think he was clear, but can he reiterate any of the points on why that is the case?

We know that there are strong opinions on this and that this is a matter of conscience for everybody. Everybody in this House should respect that it is a matter of conscience for everybody, and we all have to abide by our conscience.

--- Later in debate ---

[Lord Duncan of Springbank]

My Lords, I have a large number of pieces of paper. If you will forgive me, I will just assemble them into an order I can make sense of.

As it was at earlier stages, this has been an emotive and thought-provoking discussion. I spoke earlier to, I hope, help the debate to be informed. On choreography, I always welcome people giving me the questions beforehand, because it helps me work out the answers. It really is as simple as that; it is not collusion in any sense. It may well have been that I gave the noble Baroness answers she did not like, but the point was that I knew at the outset what the questions would be.

The noble Lord, Lord Dubs, began his contribution by asking why the length of consultation could not be the same for abortion as for same-sex marriage. There is a relatively simple explanation for that. On same-sex marriage, we have established precedent in England and Wales, and in Scotland, that can be built on in a straightforward manner. What we seek to do in Northern Ireland is quite different; there is no roll-across regime we can borrow from. As a consequence, the new elements of that will require a fuller consultation. We cannot equate the two consultations, because they seek to consult on quite distinct and different elements.

I welcome the thought-provoking contribution today from the noble Baroness, Lady Finlay. She raised the issue of conscience. I know that a number of Peers have been concerned about the conscience element. As I did during previous discussions, I stress again that the conscience element must be at the heart of this. We cannot compel any practitioner to act beyond their own conscience. We must make sure that that is understood in the guidance that will be issued thereafter to all those involved in this process; that is absolutely critical.

The noble Baroness, Lady O’Loan, raised a number of issues. If she will allow me, I will do my best to do justice to them. The first, which I think I touched on the last time we discussed this, was the Sewel convention. The important thing to recognise is that under normal circumstances we shall use the Sewel convention, but I do not think there is any doubt that we are not in normal circumstances. The Sewel convention in this instance will not apply.

The question that I suspect my noble friend Lord Elton, the noble Baroness, Lady O’Loan, and others will raise is that of what happens during that limbo period when we move away from where we are now but before we have brought into play the functioning abortion regime. It is important to stress that, although we are looking at the 1861 Act and the elements we shall remove from it, during this limbo period the Criminal Justice Act (Northern Ireland) 1945 will still apply. Section 25 will still apply; this makes it a criminal offence to destroy any life of a child capable of being born. That will apply during that limbo period, until we have got to the stage where we have the newly functioning regime.

[Baroness O’Loan]

To what period does that apply? My understanding was that the legislation said “twenty-eight weeks”. I just want to clarify that.

[Lord Duncan of Springbank]

There seems to be some discussion on this, but I have the answer to that as well. There is some debate on the exact number of weeks at which a foetus will be viable, but it is around 22 to 24 weeks. The important thing to stress here is that we are not repealing that Act, and there will be no period during which there will be any sense of an opportunity or free-for-all for that aspect to be in play. It is important to recognise that. We cannot have that misunderstood as we move through.

--- Later in debate ---

[Lord Duncan of Springbank]

I heard the noble Lord, if that helps, so I understand the point that was about to be made. I welcome that and appreciate it, as indeed I appreciate the comments from the noble Lord, Lord Empey. There is no doubt that, as the consultation process unfolds, these elements will be drawn on. We cannot simply ignore them.

It is important to ensure that the regime that we bring in to Northern Ireland is human rights-compliant—that is absolutely at the heart of this—and that within those human rights remain elements of conscience and freedom of expression which we also spoke of earlier when we spoke about same-sex marriage. The amendment would also see the repeal of Sections 58 and 59 of the Offences Against the Person Act 1861, together with putting in place a moratorium against current and future investigations and prosecutions, which will decriminalise abortion in Northern Ireland, allowing terminations to take place where they fall within the framework of other existing protections and laws.

As this change will come in before the details of the new medical regulatory regime are finalised and that scheme is introduced, to mitigate the risk of abortions being carried out in circumstances that would fall outside the prospective regulatory scheme, we will ensure that appropriate measures are put in place, such as guidance issued by relevant Northern Ireland bodies, to provide legal clarity for the people affected and for the medical profession. Therefore, in answer to my noble friend Lord True’s point, our ambition is for this process to be recognised—and it will be a significant change—but to allow each step to take place in a carefully considered legal manner.

In putting in place the new regulations, it is only right that a period of consultation is taken forward, not on the question of whether this should be done but focusing on how it will be done and to seek views on the proposals for how best the recommendations of CEDAW can be implemented in Northern Ireland. That is our purpose. We appreciate that there is existing evidence supporting this type of case for reform, which we have spoken about before, such as legal judgments, domestic inquiries and international reports. We recognise those and have heard that case.

We will need to think very carefully about how we implement the CEDAW recommendations generally, including how we meet the recommendation to provide an exception in cases of rape and incest, which will require very careful consideration of the sensitive and distressing nature of these circumstances.

We will also consider all the necessary other amendments which may be required as part of the introduction of the new abortion regime. We will carefully consider the impact of Section 5 of the Criminal Law Act (Northern Ireland) 1967, including whether any amendments are required as part of the changes made elsewhere in legislation. The Government will work expeditiously between now and 21 October 2019 to ensure that all possible necessary steps are taken, but I return to the fact that I am still struggling with the ultimate deadline in the amendment. It is also important to stress at this point that our ambition is to try to realise this in a safe and secure manner for the women of Northern Ireland. That is the guiding point of this.

I was asked a question about abortions at 24 weeks. We can guarantee that no abortions will be carried out over 24 weeks. In this limbo period, it would be an offence under the 1945 Act as these would indeed be deemed to be viable, and would be children. I say that in response to the noble Lord, Lord McCrea. After the new regime, we would not introduce legislation that allowed later abortions than are taken in England or Wales. We would seek harmony.

[Baroness O'Loan]

I am sorry. I need clarity on this. It is very important. The Minister just said that, under the Criminal Justice Act (Northern Ireland) 1945 it would be a limit of 24 weeks. Is that what was said?

[Lord Duncan of Springbank]

Yes.

[Baroness O'Loan]

But the Criminal Justice Act would need amendment to get to 24 weeks.

[Lord Duncan of Springbank]

Not as I understand it, no. It would not. If I am incorrect, I will happily correct the record.

--- Later in debate ---

Moved by

[Baroness O'Loan]

16: After Clause 9, insert the following new Clause—
“Requirement for majority of MLAs to support regulations
(1) Before a statutory instrument can be laid in each House of Parliament under section 9 of this Act, the conditions in subsections (2) and (3) must be met.(2) The first condition is that the Secretary of State must—(a) consult individually with members of the Northern Ireland Assembly on the proposals of the regulations; and(b) lay a report before each House of Parliament on the outcome of the consultation held under this section, including the number of members of the Northern Ireland Assembly in favour of and against the regulations.(3) The second condition is that the relevant regulations under section 9 may only be laid before Parliament if a majority of the members of the Northern Ireland Assembly support the regulations as stated in the report laid before Parliament under subsection (2)(b).”

[Baroness O'Loan]

My Lords, in moving Amendment 16 I shall speak also to Amendment 16A. Amendment 16 is in my name and those of the noble Lord, Lord Trimble, and the noble and learned Lord, Lord Mackay; Amendment 16A is in my name and that of the noble Lord, Lord Morrow. In speaking, despite the result of the last vote, I make it plain that I intend to divide on these amendments.

Our amendments have a simple intention: to address the very real democratic deficit that underpins the Bill. As we all acknowledge, there has been no consultation with the people of Northern Ireland about this Bill. They have not had a say. While I accept that the Bill as originally drafted was necessary, it seems that the way it has been fast-tracked has had the unfortunate and destabilising effect of enhancing the democratic deficit which is so obvious when one reads the Bill, dealing as it does, in many cases, with transferred matters.

The uncertainty about all this is somewhat demonstrated by the vote we have just had. The reality is that we still have an Infant Life (Preservation) Act. It is not repealed by this Bill. Therefore, the period of 28 weeks to which the noble Baroness, Lady Hayman, referred is the period in that Act, and the Criminal Justice Act (Northern Ireland) 1945 makes that the offence. That is why the period will be up to 28 weeks, not 24 weeks. I accept that the Minister was unaware of this, but that is the situation. There is an awful lot of uncertainty around this Bill, as I said in my previous speech.

In normal circumstances, we would have had a minimum of 31 days to consider this Bill. We have had seven days since Second Reading and we received the final marshalled amendments today—I think I got the last one at 12.44 pm. I do not know how your Lordships feel, but I think it is very difficult to grasp the implications of the various amendments to this now very complex Bill. That is demonstrated by our last exchanges.

In my previous amendment, I focused on the provisions in this Bill that have the scope to change the law on abortion and same-sex marriage. I listened to your Lordships and decided to narrow my focus to abortion, for the simple reason that the Northern Ireland Assembly debated same-sex marriage and voted on it by a majority, and it was then blocked by a petition of concern. Given that the matter was effectively passed by the Assembly, I felt it was unnecessary to include same-sex marriage in this amendment.

However, it continues to be my view that abortion is a transferred matter which, having been rejected by a significant majority of the Northern Ireland Assembly in 2016, really should not have been dealt with in this very rushed manner. It does, after all, go against the advice of last week’s report from the Constitution Committee, which said:

“We reiterate our concern about the routine nature of fast-tracking legislation relating to Northern Ireland. It is constitutionally unacceptable save for exceptional and urgent circumstances”.


The letter to the Prime Minister, which I drafted with the noble Lord, Lord Eames, has attracted a remarkable response from right across what is sometimes described as “our divided community” that has been extraordinary to see. More than 19,000 people have now signed the letter to the Prime Minister. That would be the equivalent in England, Scotland and Wales of half a million people responding over the weekend, which I do not think has ever happened. We are asking the Prime Minister to withdraw the Bill—because of the uncertainties demonstrated in your Lordships’ House and to which I have referred, and because it is such significant law—or, at this very late hour, to support Amendments 16 and 16A.

In proposing new Clause 10 in another place, on abortion, which became Clause 9 in our Bill, I am conscious that the honourable Member for Walthamstow spoke of the importance of devolution. She said:

“New clause 10 is carefully crafted to respect the fact that, at the moment, we do not have an Assembly. If there were an Assembly, it could step in and deal with the criticisms that have been levelled at us”.—[Official Report, Commons, 9/7/19; col. 182.]


Although the Assembly is suspended, and we do not have an Executive, we still have 90 Assembly Members. Without in any way changing the amendment tabled by the noble Baroness, Lady Barker, our new amendment provides a means whereby it can be given effect in a way that better demonstrates respect for devolution, which, as the honourable Member for Walthamstow says, is important. It also demonstrates respect in this House for the constitutional integrity of Northern Ireland.

This is democracy. I believe passionately, as do 19,000 others—and the number is growing all the time —that if Northern Ireland is to be treated with respect on this important devolved matter, MLAs must be given a say. If noble Lords turn their back today on the 90 MLAs, and deny them this rule, they will effectively be saying, “Let’s go back to direct rule”. As someone who lives in Northern Ireland, let me tell the House that the people have no wish to go back to direct rule.

The Minister talked about consultation, initially in terms of Section 75 of the Northern Ireland Act, the equality consultation requirement. That is a statutory requirement. The Government have no option; there has to be a Section 75 consultation. All the policies and everything else will have to be Section 75-proofed. The Minister indicated a much wider consultation.

I have so many questions about this Bill that we need to consult about. It is not just about what your Lordships are proposing. Amendment 12—now new Clause 9, I guess—is completely lacking in detail. I do not know what abortion law will look like when your Lordships are finished with it. I do not know whether it will be like Irish law, which is drafted, so the Government of Ireland have said, to limit abortions in most cases to 12 weeks, or whether it will be like your Lordships’ legislation, the Abortion Act, which allows abortion up to 24 weeks, and allows the abortion of people with a disability right up to birth. I do not know what your Lordships are proposing to impose on the people of Northern Ireland. That is a very important deficit in what is being put before the House today, and the product of a very rushed process.

We have MLAs and we trust and vote for them; it is imperative that the Bill is the subject of some negotiation with them. I think the House knows, having listened to this debate, that far too many questions—what the time limits could be, how that could work, what the impact of doing this or that would be, how the royal colleges will respond and how we would provide—remain unanswered. This is not, in my experience, how your Lordships normally make legislation—in a way that precludes proper consultation. There are fundamental principles of constitutional law at play here.

I want to take your Lordships to two homes just very briefly. In the first are a couple who are very happy and expecting their first child. They are told that the child has Down’s syndrome and they are counselled to have an abortion. They have that abortion, grieving desperately that they must have it, but do not feel they could manage a child with Down’s syndrome. Having had the abortion, they are then told that the child did not have Down’s syndrome. It happens. The second home is that of a friend of mine who was told that their baby had anencephaly. Again, abortion was counselled. They did not have that abortion. They decided they wanted to bring their baby into the world, say hello to it and keep it safe for as long as possible. When their baby was born, it did not have an anencephaly. The science—and the way the Abortion Act happens in England and Wales—is not perfect, and we need to think very carefully about what we are doing and why we are doing it.

Most of your Lordships come from England, Wales and Scotland. There are a few of us from Northern Ireland, but we are very few in your Lordships’ House. Your Lordships live in jurisdictions with more conservative laws than would be suggested by the recommendations in paragraphs 85 and 86 of the CEDAW conventions, so I looked at what your Lordships and Parliament have done in the past. What are the moments now regarded with profound embarrassment? One, I found, is the imposition of the poll tax on Scotland before the rest of the UK, even though everyone knew that opposition to the poll tax in Scotland was particularly strong. Possibly the best example was when parliamentarians from the rest of the UK imposed a Bill on Wales, against the opposition of practically every Welsh Member of Parliament—just as was the case in the House of Commons last week—and quickly created the Tryweryn dam in the early 1960s to provide water for Liverpool. Both instances became driving forces for nationalism—think about that in the context of Northern Ireland—and are now regarded in Westminster, I believe, with some embarrassment, and public apologies have been issued.

I do not think your Lordships want to author a similarly black moment in the history of the union. That can all be redeemed by voting for Amendments 16 and 16A. I commend the amendment to the House with my three parliamentary co-signatories and my 19,000-plus compatriot co-signatories. This is an amendment that we cannot allow to pass unamended—the stakes are too high. I beg to move.

Amendment 16A (to Amendment 16)

Moved by

[Baroness O’Loan]

16A: After Clause 9, after subsection (3) insert––
“(4) Section 9 comes into force on whichever is the later of––(a) the date prescribed in any other provision of this Act; and(b) the date on which the conditions in subsections (5) and (6) are met.(5) The first condition is that the Secretary of State must—(a) consult individually with members of the Northern Ireland Assembly on the proposed repeal under that section; and (b) lay a report before each House of Parliament on the outcome of the consultations held under this section, including the number of members of the Northern Ireland Assembly in favour of and against the proposed repeal.(6) The second condition is that a majority of the members of the Northern Ireland Assembly support the proposed repeal as stated in the report laid before Parliament under subsection (5)(b).”

[The Deputy Speaker]

My Lords, the amendment is long and has been circulated, so with the leave of the House, it will not be read out in full. As the noble Baroness, Lady O’ Loan, has already spoken to it, perhaps she could move it formally.

[Baroness O’Loan]

My Lords, at this late hour, I beg to move Amendment 16A.

[Lord Mackay of Clashfern]

My Lords, I have put my name to Amendment 16 with a good deal of consideration. First, when the Bill was introduced by the Government, it was absolutely plain that its scope did not embrace either same-sex marriage or the abortion provisions. In that situation, it was also introduced as a Bill that required dealing with by a very quick procedure.

We have already dealt with same-sex marriage, which was already passed by the Assembly at Stormont, but this provision is quite different because it was dealt with by the Assembly at Stormont and voted against. Our friends from Northern Ireland—the noble Lord, Lord Alderdice, for example—have assured us that things are different. I was honoured to be a Minister in Northern Ireland for 10 years, but that was rather a long time ago. I have no doubt that things have changed quite a lot in a number of ways, including the fact that I no longer have any responsibility for it.

--- Later in debate ---

[Lord Kerr of Kinlochard]

My Lords, that was an extremely impressive speech and I pay tribute to the noble Lord, Lord Shinkwin, but it was surely a speech about Amendment 12, not Amendment 16.

[Baroness O'Loan]

It has been said so often: Amendment 16 is an amendment to Amendment 12.

[Lord Kerr of Kinlochard]

Amendment 16 is entitled:

“Requirement for majority of MLAs to support regulations”.


I confess that I have huge admiration for Amendment 16, because I wish that I had thought of it when we were considering the question of possible prorogation and a crash-out deal with no consultation with Parliament. It is a wonderful thought that we could have written a prescription like this into the law, which would have required the Prime Minister to ring me up and ask, “What’s your view?”, and then work out whether there was a majority in both Houses for and against the crash out.

Actually, it does not make sense. Individually consulting Members of an Assembly that is not meeting does not make sense, I am afraid. It is of course open to the Secretary of State to consult whomever she wants, but to prescribe that she can proceed only if a majority consulted on the telephone or the internet agree is an absurdity.

I also remind those speaking to this amendment that the Minister made it absolutely clear that the consultations would be not about “whether” but about “how”. A number of the speeches that have taken place on Amendment 16 are more appropriate to Amendment 12 because they seem to assume that the consultations will be about “whether” and not about “how”.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, it has been a long debate and it has ranged rather wide of Amendment 16A. The noble Baroness, Lady O’Loan, said that Amendment 16 was an amendment to Amendment 12, but that is not correct. In fact, Amendment 16 would insert a new clause.

[Baroness O'Loan]

My understanding, having talked to the clerks, is that the new clause proposed by the noble Baroness, Lady Barker, becomes Section 9, and this amendment then seeks to amend it.

[Baroness Smith of Basildon]

Amendment 16 actually proposes inserting a new clause, but that is slightly irrelevant. We have had a debate on Amendment 12 and are now looking at the requirement to consult MLAs. There is something slightly uncomfortable about this. I am certainly not opposed to consultation. I think that the best consultation that we could have on this issue would be more than consultation. I would want to see the Assembly up and running and making these decisions itself—a point that the noble Lord, Lord Bruce, made. It is not just a question of taking consultation on one issue in isolation; what is really important is the process of governance, where issues are weighed against each other, talked through and looked at in detail along with other information. I fully—100%—support local decision-making and the local responsibility that goes with it, but that is not what we are talking about here.

In some ways, we are almost talking about imposing a double lock on the Government. The amendment that they want to consult on—the new law, as it will be—requires the Secretary of State to bring forward regulations in the absence of a Northern Ireland Executive. Therefore, only in the absence of an Executive would the Government be able to bring forward regulations. However, it would seem somewhat strange to then say, “We haven’t got an Executive. The Government must take the decisions, but we’ll go and consult them anyway”. That seems almost like a double lock, preventing the Government taking any action at all while the Assembly is not sitting.

If that principle were imposed across the board, it would be very difficult for there to be any governance on any issue in Northern Ireland. It would be inappropriate to put the Government in that position when the Assembly has not sat for well over two years. Therefore, despite what I think are good intentions behind the amendment, I cannot give it any support.

[Lord Duncan of Springbank]

My Lords, in many respects this has been a longer extension of the earlier debate. I almost wish that someone had asked me a question at the beginning so that I could have stood up then. In fact, the MLAs will be consulted as part of the ongoing consultation envisaged with the stakeholders. However, the difference is that they will not get a lock on that, which would mean that only a majority could help us move forward. Therefore, the views of the MLAs will be taken and heard but they will not be a determining factor in arresting progress on this amendment. It is important to be aware of that as we make progress. It is also important, as I said when we discussed this issue a longer time ago, that the scope we are discussing is the scope we have received from the other place. The criticism of proceedings in the House of Commons, and those issues, are deemed out of order in the Companion. We have to accept that what has arrived here is something that we can act on and take forward, which we must do.

It is important to stress, throughout each of our discussions on this wider question, that the Government are not seeking to take forward an abortion amendment. We have received from the other place a clear statement, by a clear majority, on a conscience issue and a free vote. For good or ill, in response to my noble friend Lord Shinkwin, the Prime Minister, in this instance, would be able to exercise her conscience in the same way as anybody else in that House. This is not the UK Government’s policy, nor is it the policy of my party, but responsibility rests with this Government to ensure that what we are able to do in moving this matter forward is safe, sound and secure. That responsibility rests with us, and that is what we have sought to do in engaging with all noble Lords throughout this process—to ensure that we are able to deliver on that.

The discussion has ranged more widely than the question of consulting with the MLAs. I do not wish to extend the debate significantly in this direction, given that one of noble Lords’ concerns has been the scope from the other place, but I will touch on a few elements. By any definition, we have to accept that the situation in Northern Ireland is dysfunctional. The devolution structures that have been put together are not working. One can argue that the structures are at fault, or that the problem rests elsewhere, but the problem we face now is that the outcome is the same no matter which you decide is responsible. The situation that we face is serious, and I do not think there is a single Member in the House tonight who would not wish to see these matters taken forward by an Assembly and an Executive in Northern Ireland. For reasons that are all too apparent, however, certain parties in Northern Ireland are not able to deliver against that instruction. That is a great shame, as we probably all agree. We all recognise that noble Lords sitting here at this late hour should not be taking these matters forward in this fashion, but we are doing so because of a failure and a fault in the system in Northern Ireland

As the people of Northern Ireland look at what we are doing here, I have a sneaking suspicion that they are sick and tired of all politicians, of all rank and measure. They are tired and weary now because they seem to be in a situation where politicians are all over them when it comes to an election, then—lo and behold —seem to disappear when it comes to the heavy lifting. They now see all politicians of all parties, of all ilk and all places, in exactly the same way. That is a terrible situation to be in, and we need to restore the confidence and trust of the people of Northern Ireland in the elected system. We need to get the Executive up and working, and get this moving forward, but that is not what we are able to do through this amendment.

The noble Baroness, Lady O’Loan, has made a passionate speech this evening, and she has received a number of emails in response to a particular letter. I am sure we all have a large number of those in our inboxes now, but the number of emails needs to be judged against the population of Northern Ireland. The population is 1.871 million, and we need to recognise that the passion of those who have responded should be applauded, but it is not a means by which we can determine the view or the will of the people of Northern Ireland; nor should we consider it so. It is an important measure, but it is not in itself an adequate measure.

The amendment before us now broadly says that the MLAs must be consulted and their response to the consultation will determine what happens next. We cannot accept the amendment, but I stress that the MLAs will be consulted, and I can go further by ensuring that MLAs receive an update on each of the aspects that noble Lords will be updated on as a consequence of the earlier amendments from the other place. If your Lordships are so minded, we can ensure that MLAs receive exactly the same information that comes from the reports we have commissioned, or are about to commission, to ensure that they are fully abreast and aware of all of these aspects. We will do all we can to engage directly with the MLAs to ensure that they are fully aware of each step. I have no problem with committing to do that now, but I cannot have a lock placed on progress on this matter. That would place the Government in the invidious position of having been, both from the other place and through our own vote this evening, in a clear position, but then having to say that they must await the views of MLAs. We cannot have that, I am afraid; it would not be appropriate. I therefore ask that the amendment be withdrawn.

[Baroness O’Loan]

My Lords, I have listened with care to everyone who has spoken. I thank noble Lords who have spoken in support of my amendments. I will address a couple of issues before I give noble Lords my decision. There is a democratic deficit. The Minister is right: people are tired of politics. That is why I did not expect a response to the letter which the noble and right reverend Lord, Lord Eames, and I drafted, yet the responses continue to come in.

[Lord Kilclooney]

My Lords, very briefly, it is easy to say that people are tired of politicians; that is the usual trick when debating. But in the most recent election in Northern Ireland, the politicians got a turnout of a higher percentage than five years earlier.

[Baroness O’Loan]

I thank the noble Lord; I am in his debt.

There is a democratic deficit. Noble Lords have acknowledged it throughout this debate. They have all acknowledged their unease at the way they have found themselves forced to do this and they have stressed the unacceptable nature of what they have been obliged to do. Despite that, our people still want a voice. While discomfort has been expressed here about what has been said, there is huge discomfort in Northern Ireland about the imposition of abortion by Great Britain on a people who do not want it. The context is that we are talking life and death issues. That is the difference about abortion: it is the life and death issue of a child, in respect of which, as noble Lords have said, the Assembly had a clear view.

We face Brexit. We started with Brexit this evening and we will end with Brexit. It would not be good to do this to a people who do not want it without at least consulting their MLAs; it would be too reminiscent of the bad old days. Of course, we are all aware of the subtext: that Sinn Féin had two red lines to coming in to the talks, which have now been removed. Sinn Féin may come back but not, I suspect, before this Bill is passed and implemented.

There are so many uncertainties around this Bill. I think the Minister has forgotten about the Istanbul convention; I hope he will come back to me on that.

I ask noble Lords to do as the noble and learned Lord, Lord Mackay, has said: to respect, in so far as we can, the devolved Administration. Our peace in Northern Ireland was very hard won. We still have fears, troubles, bombs and shootings. I ask noble Lords to give a voice to the MLAs in Northern Ireland by supporting this amendment. I do not intend to withdraw it; I wish to test the opinion of the House.