Northern Ireland (Executive Formation etc) Act 2019: Section 3(5)

Baroness O'Loan Excerpts

Tuesday 7th January 2020 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I want to address the abortion consultation conducted by the Northern Ireland Office and reported on in this report. Because of the way that the legislation was enacted, against the wishes of the people of Northern Ireland and propelled by Members of the other place from England, Scotland and Wales—none from Northern Ireland—this was a profoundly important consultation. The regulations will be presented to Parliament and be incapable of being changed, by virtue of their format. They can only be rejected in their totality, not amended; therefore, their content will be of the utmost significance to the people and, more importantly perhaps, the unborn babies of Northern Ireland.

Like many others, I have deep concerns about how the consultation was conducted, with a six-week period granted, during which the general election was taking place. I note the Government say that there was a high level of consultation; it would be helpful if the Minister could tell us how many respondents there actually were. No special effort was made to make the consultation accessible, despite the way in which the law was passed. The consultation document was available online to those who use the internet. If you did not use the internet the instruction was to email the NIO—do you hear that, my Lords?—asking for a copy of the document. You could not phone and ask for one. If you could not access a computer or suffer from a disability which restricts mobility or eyesight, or causes literacy difficulties, there was no obvious special provision. There was no publicity after the initial announcement. One could be forgiven for thinking that the Government were not overeager to receive responses.

The Government are of course required to introduce new regulations to legalise abortion only in limited circumstances. Those circumstances are described in the CEDAW report and in the Act. They refer to cases of threats to the woman’s health where the threat does not need to be permanent or long term, to pregnancy resulting from rape and incest, and to pregnancy involving severe foetal impairment, including fatal foetal abnormality—whatever this means. The Government are also required to ensure appropriate and ongoing support, social and financial, for women who decide to carry such pregnancies to term. There was no invitation in the consultation to consider how such support might be delivered.

What deeply shocked me is that despite their stated commitment to devolution, the Government now propose, through the consultation, to needlessly undermine devolution to a far greater extent than Parliament requires. There is no requirement in Section 9 to introduce abortion on request for any reason up to 12 to 14 weeks’ gestation. That is not required by the CEDAW report but appears to be what is proposed. There was no opportunity in the consultation to answer the basic question: “Should abortion be available on demand?” and simply say no. That question did not exist.

The Government also asked whether abortion should be available to 21 weeks and six days or 23 weeks and six days if

“the continuance of the pregnancy would cause risk of injury to the physical or mental health of the pregnant woman or girl, or any existing children or her family, greater than the risk of terminating the pregnancy”.

The document did not define or qualify that risk, even where the pregnancy might be a threat to the health of family members. It did not even define “family members” —grandmothers, aunts, husbands, someone living with their extended family? This is effectively planning for abortion on request. I have seen no evidence in England and Wales of an application for an abortion on ground C ever being turned down, certainly in the past 10 years.

Most shockingly, question 4 asked whether abortion should be available up to birth

“where there is a substantial risk that the fetus would die … in the womb … or shortly after birth”

or

“would suffer a severe impairment, including a mental or physical disability which is likely to significantly limit either the length or quality of the child’s life?”

Yet under the Criminal Justice Act (Northern Ireland) 1945, it is an offence to terminate the life of a child capable of being born alive despite a disability.

There was no definition about what constitutes severe impairment, yet people were asked to respond on that basis. In England and Wales, 90% of babies with Down’s are aborted at birth. Many conditions might significantly affect the length or quality of a child’s life. It does not mean that the life is not worth living. In effect, this legalises all abortion, including sex-selective abortion and disability-selective abortion. Why is there no attempt to provide protection for unborn babies against discrimination on grounds of gender and disability, and why is there no recognition of the need to protect pregnant women from being coerced into abortion?

Why do the Government suggest that the law on conscientious objection should reflect that in England and Wales, which is inadequate? For those who recognise and acknowledge the harm inherent in the deliberate killing of a child in the womb, there should be a right not to be involved at any stage.

The suggestions in the consultation were invariably lacking in definition. We have heard the reference to registered health professionals, not doctors. Going beyond what is strictly necessary under Section 9 contradicts any assertion that the Government want to uphold devolution in Northern Ireland. The way in which this consultation was drafted reflects a political decision made by the NIO. Yet we are at another critical point in Northern Ireland’s political life. Our nurses are on strike again.

Many people in Northern Ireland have protested and argued in many ways since July. The consultation was flawed; it was not accessible. To build law on a vague, flawed consultation lacking in specificity of almost any kind without the necessary impact assessments would be most dangerous. I ask the Minister, the NIO, the UK Government, your Lordships and the other place to have regard for constitutional due process and in drafting regulations, which will of course be incapable of change, to ensure that what is provided does not go beyond what is strictly required by law.

--- Later in debate ---

[Lord Duncan of Springbank]

My Lords, thank you for what I hope will be the final instalment of these debates. Again, it has been wide-ranging and thought-provoking. I will seek to answer each of the points raised, but let me quickly state that my right honourable friend the Secretary of State will work through the weekend. I think he will be working through the night to try to bring together those parties for the final step that has to be taken.

The noble Lord, Lord Murphy, is correct to identify the issues that remain divisive, but other noble Lords this evening have pointed out the issues that need to be addressed. Perhaps they should outweigh the reality of what is faced with those other issues that need to be brought together. I will be very clear: the approaching deadline of 13 January is a meaningful deadline. If there is no agreement to form an Executive by the end of that day, there will have to be an election in Northern Ireland. That will bring with it the reality of purdah and various other elements but it will be the necessary step in moving this matter forward.

We have sought to extend the Executive formation period on a number of occasions, which we have discussed over the past few months. This is now the last step of the last stage, and the deadline has to be meaningful. It should crystallise thinking and ensure that for those who are casting an eye over their shoulder at the result of the last election, as they consider what will come next, it may be an issue which I hope they will use to sharpen their thinking in the last few days.

I will try to address each of the issues that were raised this evening as best I can. I will start with the noble Lord, Lord Adonis, and the question of higher education provision in Derry/Londonderry. The issue at the heart of this is a decision taken by the Executive to cap the number of students. By doing so, they created a problem for provision in Northern Ireland, which is one of the principal reasons why so many students from Northern Ireland end up being educated in the rest of the United Kingdom. That decision needs to be addressed. I have looked with some care at Ulster University’s proposal for the Magee campus for the graduate school of medicine. To coin a phrase, I believe that it is oven-ready, and I believe that it could be moved forward in short order. However, it needs an Executive, or other powers, to move it forward. Again, I believe in endorsing the view that that is the only way to ensure the indigenous retention of medical practitioners; indeed, I will look at other academic disciplines as well.

The noble Lord, Lord Hain, brings great experience to this issue. He is right to observe that the amendments proposed in the other place are cross-party and should be given due consideration either there or here when the Bill arrives. We need to be careful in looking at them and recognise where they have come from. It is important to do that very thing going forward.

On the wider issues of health and health provision, education and education provision, and social provision, as I have said before and as noble Lords have echoed this evening, the statistics in Northern Ireland are ghastly. They are dreadful. Nobody else would tolerate that; I am shocked that Northern Ireland does. It is only because of the absence of an Executive and an Assembly, where these things can be debated with the anger they richly deserve, that they have gone unaddressed for so long. That cannot go on. After the point when we have an election, whatever follows thereafter, this will need to be a priority for any incoming Executive or any responsible Government taking action in this area. That will require funding. It will require sensible administration. It will require action and it will require urgency. All those things will need to be delivered, I believe, in the first half of this year.

As to the more vexatious issues, let me start with the question of same-sex marriage. There will be two consultations, one concerned with the religious notions of the ceremony itself. Those consultations are beginning. The noble Lord, Lord McCrea, asked whether the Secretary of State will meet with the Moderator of the Free Presbyterian Church. The answer is yes, of course he will. He will meet with other religious leaders on that point because it is important that we ensure that the structures in place are cognisant of the uniqueness of Northern Ireland; Northern Ireland therefore needs to consider that. I hope that when this consultation opens, which I believe will be imminent—I am torn over using the word; you may interpret that as you wish—or very soon, such consultation will happen.

The noble Lord, Lord McCrea, also asked how children will be taught about this matter in school. That remains a devolved matter but we are in touch with the relevant department in Northern Ireland—the Department of Education—to ensure that guidance for schools is appropriate, adequate and measured. Again, that aspect is important. As I have said on this matter on a number of occasions in the past, there will be no compulsion on any individual to breach what they consider to be matters of their own conscience. That will be reflected in any guidance issued in schools and elsewhere, and is part of the ongoing dialogue.

It is important to recognise that these issues have now been broadly brought to rest. On the question of whether that should have been done in the manner that it was, I do not think that that was the ideal way of doing it either. However, as we have said about health and education and all the other issues, I am afraid that this situation is what happens when there is no functioning Executive in Northern Ireland. It is one of the consequences of that and we are living through it now.

The noble Baroness, Lady Lister, made an important point. At the moment, I cannot make any commitment in advance of the talks concluding on 13 January. I hope that they conclude positively and I hope that out of them will come the urgency of the mitigation measures mentioned by the noble Baroness. I have spoken of these matters personally with her and in this Chamber. I do not believe that they can be left unattended in the new period; progress will need to be made on them. I am afraid that I can give no further commitment on this matter but I commit to returning to the House in due course to provide a full update on it as events progress to the point where I can do so. I am also happy to meet in person on this matter in the interim period, should that prove useful.

On abortion, a number of specific issues were raised. I believe that when we have discussed these in the past, I have sought to answer them. I will try briefly to touch on some of them. The noble Lord, Lord Morrow, asked what law would be cited to protect a woman who was the recipient of a noxious substance administered by an individual to try and bring about the termination of a pregnancy. Sections 23 and 24 of the Offences against the Person Act 1861 apply not just in Northern Ireland but across the rest of the United Kingdom. There should be no instance in which this crime is left unpunished and again I stress that this would be a crime and would be punished.

On the availability and purchase of online abortion tablets and pills, it is an offence to sell these products but of course it is not an offence to buy them. I stress that these items can be bought at present. Under the previous regime, the greatest danger was that these pills would be taken by individuals who then could not seek recourse through the medical profession because they would themselves be guilty of a breach of the law. They were placed in the invidious position of taking substances which are unregulated over the internet, and would not then have recourse to medical practitioners to ensure that the consequences were dealt with in a safe environment. That is different now.

I turn to what has happened during this limbo period. It is important to stress again that there has been a slight uptake in the number of individuals who have come to England to undertake these activities. There has been no registered growth in illegal or back-street abortions in Northern Ireland, and attention has been paid to establish whether that is indeed the case. I believe that the rules I set out on the last occasion covered those matters. There is no free for all or Wild West situation in Northern Ireland. There are rules of law which govern both the practice and the administration of medical attention and so forth. I set those out in my previous statement and I will not repeat them at this moment.

I was very clear that the consultation is not about the issue of abortion in itself, but about the framework for the safe delivery of abortion as was agreed in law here. The consultation itself rightly asks specific questions regarding the nature of that framework and does not pose the fundamental questions which have been raised in the debate. It did not seek to do so and those who wish to augment their answers to the consultation were—

[Baroness O'Loan]

I think that the Minister may have misunderstood me. I asked if the consultation—I am sorry but I am too tired. Can he please remind me of where he was?

[Lord Duncan of Springbank]

I was saying that the consultation itself is specific regarding the framework for the delivery of the services themselves. However, if an individual wishes to make a wider point in the discussion, it allows that to happen, although it is not within the scope of the consideration that will result as a consequence.

[Baroness O'Loan]

My Lords, the point I wanted to make was that I was not saying that I totally rejected abortion; rather I said that it was untrammelled and unfettered abortion on demand to 12 or 14 weeks. This is not what is required by Section 9 of the Act. I apologise to noble Lords, but that was the point: it is not required.

[Lord Duncan of Springbank]

Again, the point I was making about the framework is that it is not unfettered abortion. It is seeking to apply an established process to ensure the safety of individuals and the administration of the service itself. However, the reality remains that in this limbo period, far from being a Wild West of free practice, because of the absence of the detailed framework, there has actually been a regression in that regard. Individual practitioners have not been offering that service and I believe that they will probably not do so until the guidance is clearly embedded. It is not until the point when the regulations become active that we will see a functioning regime. That is why I said that during the interim period there has been an increase in the number of individuals who are now aware of the service that is available here in England, along with the support available from the United Kingdom Government to provide both free travel and free accommodation for those who wish to undertake the procedure.

I hope that the issue of the consultation, which I believe is a straightforward one regarding the framework itself, will be considered by the relevant authorities to ensure that what is put in place is fit for Northern Ireland and its unique circumstances and that each of the elements we have touched on in the past regarding fatal foetal abnormalities or issues of rape, incest and so on are considered alongside those of the wider question of the CEDAW recommendations within the wider report. Each of these elements is still broadly part of what we seek to deliver, as we made clear when this was enacted in the latter stages of last year.

I believe that those are the principal issues have been touched on today. If there are issues that I have not touched on, I am happy to write or to meet personally to try to address any of these, but on that basis I would like to close what I hope will be the final report in this sequence. We then await progress—I hope positive progress—and I would like to be standing here very soon saying that there has been a breakthrough. If there has not been a breakthrough, Northern Ireland has been very badly let down, so I hope I am back on a positive note.