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.

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[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.

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[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.

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[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.

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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.

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[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”.

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[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.