Report Pursuant to Sections 3(1), 3(6), 3(7), 3(8), 3(9) and 3(10) the Northern Ireland (Executive Formation etc) Act 2019

Baroness O'Loan Excerpts

Monday 9th September 2019 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I would like to express my congratulations to the noble Lord, Lord Caine, on his very fine maiden speech.

During the passage of the Bill that led to this Act, I asked what abortion law would look like in Northern Ireland after the passing of the Act. I asked whether it would be the European norm of 12 weeks or follow the Abortion Act 1967 which allows abortion up to 24 weeks and abortion of people with a disability right up to birth. That Bill passed 50 years ago and has no cognisance of modern obstetric knowledge and practice. Two months later, I am no clearer; nor it appears is the Northern Ireland Office, since it says that,

“much further work is required”.

We do know that if the Executive does not re-form by 21 October—I sincerely hope that it does—the legal framework will disappear. Six weeks tomorrow, there will be no regulation of abortion in Northern Ireland up to the point of viability. The presumption, which is rebuttable in law, is that viability occurs at 28 weeks. We will be back to the position we were in in the mid-19th century before the Offences against the Person Act 1861. I do not know how the Government got themselves into this position. They had agreed that matters would be dealt with only by or with the consent of the devolved Assembly. We have an Assembly, even if we do not have an Executive, and the Members of the Legislative Assembly were not consulted at all.

The careful planning which normally applies and which is being done for the organ donation Act, for example, has not applied to this, so I have further questions for the Minister. When will details of the new law be available for consultation? Will your Lordships’ House be consulted or has Parliament written a blank cheque for abortion in Northern Ireland? How will the Government seek the views of the people of Northern Ireland and their elected representatives? It will not be enough to consult only the medical profession or its professional bodies. Have the Government started to consult the medical profession? If so, when did that consultation start and with whom is it occurring? Can the Minister confirm that, in the interim period, subject to the provision about viability, it will be possible to abort a baby up to 28 weeks for any reason whatever, including if the baby is the “wrong” sex or has a minor disability? Is the guidance or consultative paper in draft form now? If so, will he place it in the Library so that we can consider it? If it is not in draft form, can it be placed in the Library as soon as it is ready?

There was no human rights deficit before this Act, but the passing of the Act will mean that in terms of the Istanbul convention, Northern Ireland will become less compliant in human rights terms. Therefore, the UK as a whole will be failing in its obligations under the Istanbul convention to protect women against coercive abortion from 22 October. The Government cannot rely on the proposed domestic violence Bill to address this deficit in the current volatile political situation. It has been said that professional bodies will regulate the matter and ensure that services are provided only in a proper manner. Professional bodies regulate conduct, not the law. That is why the Act provides for regulations.

If such an arrangement involving a complete limbo of over five months were imposed on England and Wales, there would be an outcry. There is an outcry in Northern Ireland. The necessity for the regulation of abortion has been shown by repeated CQC inspection reports on abortion clinics showing failed abortions, emergency transfers to NHS hospitals, most recently in BPAS Merseyside, and failings in the safety of services. We need a regime of inspection regulation.

We cannot know how widely abortion services will be available from 22 October. Will the drugs to induce early abortion be made available from that date? Will patients have a right to demand such a prescription? Will doctors be able to refuse an immediate prescription if they do not want to prescribe? Will women be self-administering in the absence of medical help, with the attendant risks? How will medical professionals’ rights to freedom of conscience be provided for?

Your Lordships know that this Act undermines the devolution settlement. People in Northern Ireland feel very, very strongly about this. I was among the 20,000 who went to Stormont on Friday night to protest, as was the noble Lord, Lord Morrow, and again on Saturday I was out in the centre of Belfast with the many thousands who demonstrated against this change, a change in which we have had no say and still do not know what it is really going to mean. The regulations required under Section 9 must, under Section 12, be agreed after they come into effect. The regulations cease to have effect after 28 days unless approved. But the 28 days takes no account of any time in which Parliament is dissolved or prorogued or both Houses are adjourned for more than four days. We cannot predict what is going to happen in the days to come. If we go to an election, as seems highly likely, it could be months before we have any clarity, but we will have no regulation of abortion from 22 October.

The Northern Ireland parties must make their return to the Assembly a priority. Government must do more to facilitate proper talks. That we should still be in bilateral talks at this stage of the proceedings is quite distressing. At the end of the day, the parties could come back into Stormont, form an Executive and then walk away again. The Act could not then come into effect. I say to Sinn Féin and the DUP that this is what they should do at the very least to remedy this unprecedented democratic deficit. In the interim, if that does not happen, there should be no limbo period at all. Government have the responsibility in this matter, having assumed it by enabling the Act. Government should pass emergency legislation to remove the limbo period, bringing the legislation into effect only after the regulations are passed or Stormont meets again. The UK would then be compliant with its Istanbul convention obligations. We need emergency legislation to cover the period from 22 October and we need any new regulations to be the subject of consultation with our MLAs so that there is some respect for the democratic rights of the ordinary people of Northern Ireland.