Baroness O'Loan
Main Page: Baroness O'Loan (Crossbench - Life peer)Abortion (Northern Ireland) (No. 2) Regulations 2020
Baroness O'Loan Excerpts
Baroness O’Loan
Leave out from “that” to the end, and insert “this House declines to approve the Regulations because they (1) have been rejected by the Northern Ireland Assembly, (2) are legally flawed by being in breach of section 6 of the Northern Ireland Act 1998, (3) do not prohibit abortion on the grounds of non-fatal disability, (4) perpetuate stereotypes towards persons with disabilities, including Down’s syndrome, and (5) do not prohibit abortion on the grounds of sex selection during the first twelve weeks of gestation, as is the case in Great Britain, and therefore perpetuate negative stereotypes and prejudices towards women.”
Baroness O’Loan (CB)
My Lords, these regulations apply only in Northern Ireland; we now have a functioning Northern Ireland Assembly. Abortion is a devolved matter; the Assembly voted to reject these regulations on 2 June. The wording of the Motion was to “reject” these regulations. Of our 90 MLAs, 75 voted against the provisions for grounds of disability. When the NIO carried out its short consultation, 79% of respondents rejected these proposals. In the past few days, over 18,000 people have signed an open letter to Peers and MPs—I sent it to all noble Lords on Friday. They ask that you listen to them, and to the Northern Ireland Assembly, and do not approve these regulations. The Government have said that the vote is of no consequence: Northern Ireland must comply with its international human rights obligations. The CEDAW convention does not mention abortion. Article 29 is clear that nobody has the power to read in rights and none has been read in.
The report to the unelected, non-judicial UN CEDAW committee is not international law. There is no international legal obligation to pass these regulations. Parliament voted last July to require compliance with Articles 85 and 86 of CEDAW. The obligation makes it one of national, not international law. What Parliament makes, Parliament can unmake; we could repeal Section 9. No international human rights obligations derive from the CEDAW report. The Government say they have to table these regulations; that is not right. Section 9 says that, having tabled a set of amendments, the Secretary of State has a discretion, not a duty, to make further regulations.
There are 41 speakers in this debate. Eight of us from Northern Ireland have just 13 minutes in which to speak while the other 77 minutes are for Members who are not from Northern Ireland. Ninety minutes are not enough, given that no Northern Ireland Members are on the JCSI or the SLSC. The SLSC drew the regulations to the special attention of the House because Parliament was denied an opportunity for scrutiny and this is the first occasion on which your Lordships have been able to consider this radical change. There is no opportunity for amendment.
Some of these regulations do not even comply with CEDAW. Article 85 expressly stipulates that expanded access to abortion on the basis of disability must be made
“without perpetuating stereotypes towards people with disabilities”.
That is what these regulations do. They afford viable unborn babies from 24 weeks’ gestation protection from abortion, while saying that viable babies of exactly the same age can be terminated just because they have a non-fatal disability. Are the Government interested in achieving compliance not with Article 85 but with approving the 1990 discriminatory law in Great Britain which is now subject to legal challenge?
The regulations make sex-selective abortions lawful because there is no impediment to such abortions in them. The Minister has written to the noble Baroness, Lady Eaton, to say that the absence of an impediment does not mean that sex-selective abortion is permissible. In our legal system, anything is lawful unless it is unlawful. Canada introduced access to abortion without conditionality and the Canadian Medical Association Journal says that Canada is now regarded as a “haven” for sex-selective abortion. The identification of sex is available to pregnant mothers between seven weeks and 10 weeks of gestation. The Government have said that this is an abhorrent practice which is illegal in Great Britain because the grounds on which one can get an abortion do not include the sex of a child. In January of this year, the Government said that that is what English law states. These regulations will make abortion up to 12 weeks’ gestation lawful for any reason, which must include foetuses of the wrong sex. People think that we are being asked to vote for this measure to send a signal that sex-selective abortion should be accommodated throughout the UK. CEDAW has said that it
“aligns itself with the Committee on the Rights of Persons with Disabilities in the condemnation of sex-selective and disability-selective abortions, both stemming from the need to combat negative stereotypes and prejudices towards women and persons with disabilities.”
The regulations are silent on the matter of coercive abortion. The Istanbul convention requires protection against coercive abortion. I know that it has not been ratified, but we are supposed to be becoming more and not less compliant with it. In 2019 the Government said that Section 58 of the Offences Against the Person Act covers such behaviour, but it has been decriminalised and this House voted to remove it. Moreover, the regulations fail to provide the new, explicit offences that were promised by the Government. The only penalty for any offence is an inadequate fine of up to £5,000.
The Northern Ireland Attorney-General and many other eminent QCs have argued that Regulations 7, 12 and 13 are ultra vires. This resulted in a letter that was sent to all Members by a group of 38 Peers and MPs from across the UK and five different political groupings, highlighting that these regulations are not intra vires. Indeed, the repeal of part of the Criminal Justice Act is not even mentioned in the CEDAW report.
The Secondary Legislation Scrutiny Committee has expressed serious concerns about the inadequate nature of the consultation process. Be in no doubt: if you vote for these regulations, you will be giving discrimination a fresh mandate for GB, not just Northern Ireland. The regulations are not consistent with Section 9 and they have been rejected by the Northern Ireland Assembly. The proposals were rejected by 79% of respondents. Repeated demonstrations have occurred and an earlier letter to the Northern Ireland Minister was signed by 23,000 people. The regulations are not even compliant with CEDAW on disability discrimination and sex selection. This is not an international human rights obligation on the UK.
I ask noble Lords to listen to the people of Northern Ireland and listen to our Assembly. Do not approve these regulations. I will call a Division.
Amendment to the Motion
Viscount Younger of Leckie
My Lords, I find myself agreeing with pretty well all the comments made by the noble Baroness, Lady Smith. I thank her for her remarks. I also thank all noble Lords who contributed to the debate.
I fully recognise that this is a sensitive and emotive issue for many. I have listened very carefully. I recognise that several noble Lords with long-held views registered their strong opposition to what we are doing but, as the noble Baroness, Lady Thornton, said, we are under a clear statutory duty; and, as the noble Lord, Lord Hain, said, it is important that women and girls in Northern Ireland are afforded equal rights to those living across the rest of the UK. On the other side of the argument, there are some who consider that we have not gone far enough.
Before I turn to the issues raised, a few noble Lords questioned the extent of our legal powers. I note, as the noble Baroness, Lady Scott, said, that the JCSI has not drawn the instrument to the attention of both Houses for being ultra vires. The noble Lord, Lord Elton, and my noble friend Lord Cormack should know that the Procedure Committee agreed that, like others, these regulations are at present subject to 90 minutes. This was also subject to agreement in the usual channels.
I also note the amendments to the Motion tabled by the noble Baroness, Lady O’Loan, and my noble friend Lord Shinkwin, and I hope that my answers on the issues raised this evening go some way to indicating why the amendments should not be supported.
Some noble Lords, including the noble Baronesses, Lady Ritchie and Lady O’Loan, and my noble friend Lady Stroud, raised the constitutional propriety of these regulations being legislated for from Westminster, and the Northern Ireland Assembly’s debate on 2 June, which called for the removal of regulations permitting abortions in the case of severe foetal impairment rather than fatal foetal abnormality.
As my noble friend Lord Bourne pointed out, the UK Parliament, by way of Act of Parliament, compelled the UK Government to ensure that the regulations were in force by 31 March 2020. Section 9 of the Act would not have applied if an Executive in Northern Ireland had been set up on or before 21 October 2019, as set out in Section 13 of the Act. Had that happened, the regulations could not have been made.
The Motion itself does not tell us what the Northern Ireland Assembly is for; it highlights only the part of the regulations that it is against, which the noble Baroness, Lady Smith, pointed out. I remind noble Lords that the regulations can be amended in Northern Ireland should that be so wished in the future, so long as any amendment is compatible with the ECHR and compliant with CEDAW—again, as the noble Baroness, Lady Smith, said.
On the issue of disability, I fully appreciate the concerns raised, particularly in the powerful contribution from my noble friend Lord Shinkwin. He is a friend and I have a particular respect for him. I recognise that this is a highly sensitive issue. Noble Lords are aware that part of these regulations calls for access to abortion in the case of both severe foetal impairment and fatal foetal abnormalities. It is our firm view that the regulations fully comply with the statutory duty under Section 9 of the NIEF Act, which includes implementing all recommendations in the CEDAW report.
The regulations mirror the law in the rest of the UK, where abortions are permitted in cases of severe foetal impairment and fatal foetal abnormality, with no time limit. The Government would never act to discriminate on the basis of disability. We maintain that the regulations are consistent with the rights under the United Nations Convention on the Rights of Persons with Disabilities, which is an important point to make.
Turning to sex selection, raised by the noble Baroness, Lady O’Loan, and my noble friend Lady Eaton, medical practitioners are under no obligation to provide treatment in all cases under Regulation 3, irrespective of the absence of an express requirement for the woman to meet a legal test for gestations up to 12 weeks. That would particularly be the case where the practitioner has concerns that the woman is conflicted and undecided on whether to proceed with the abortion, where they have reason to believe that the woman has been coerced or put under pressure by a partner or family member to proceed, or where other issues of concern are identified. Furthermore, in Northern Ireland under the NHS, scans to detect the sex of the foetus take place between 18 and 21 weeks’ gestation. At that stage of gestation, a woman would be able to access an abortion lawfully only up to 24 weeks’ gestation where
“the continuance of the pregnancy would involve risk of injury to the physical or mental health of the pregnant woman which is greater than if the pregnancy were terminated”
or with no gestational limit in relation to severe foetal impairment or fatal foetal abnormality or where there is
“Risk to life or grave permanent injury to physical or mental health of”
the pregnant woman, or in cases of immediate necessity, as pointed out earlier. This is similar to the rest of the UK under the Abortion Act 1967.
Data collection, analysis and publication on abortion-related matters, including sex selection in Northern Ireland, will be a matter for the Department of Health in Northern Ireland to take forward, as part of commissioning full abortion services, consistent with the Northern Ireland regulations.
I recognise that a few noble Lords have concerns about the regulations providing unconditional access to abortions up to 12 weeks’ gestation. As I noted in my opening remarks, the provision was determined as the most appropriate way of meeting our statutory duty and what CEDAW requires by ensuring that women, including victims of sexual crime, access services without undue delay while avoiding anything that could lead to further trauma or act as a barrier to access. Based on current public data, 86% of the abortions accessed by residents of Northern Ireland in England under the Abortion Act 1967 in 2018-19 took place prior to 12 weeks’ gestation and would be covered by this limit.
We consider that this approach will ensure that women resident in Northern Ireland will have access to abortion without conditionality in the vast majority of cases where it is their individual choice to use it. This approach ensures compliance with CEDAW requirements. This is appropriate given that the position in Northern Ireland, following repeal of Sections 58 and 59 of the Offences Against the Person Act, is that abortion early in pregnancy has been lawful since October 2019.
The noble Baroness, Lady Smith, asked some questions about compliance with regulations, and I will write to her because I have a lot that I would like to say about the close co-operation between the health services in England and Northern Ireland in terms of helping where required. The health service in Northern Ireland should take these regulations forward and provide top-class services for those women and girls who require an abortion service.
The noble Lord, Lord Morrow, the noble Baroness, Lady O’Loan, and others stated that the regulations do not provide adequate sanctions and, therefore, leave a big gap in the law, putting women at risk of abuse and coercion. I hope I can reassure them that that is a misleading interpretation of the protections that remain in place across the statute book to protect the health and safety of women and girls. As well as the sanctions for intentional breaches of the regulations, other criminal laws continue to apply. Taken together, they ensure that the safety of women and girls remains paramount, and that medical professionals are able to provide abortion services in good faith and in the interests of their patients within clear legal parameters.
As you might expect me to say, with 41 speakers, it is impossible to answer every question. I will look extremely carefully at Hansard after this debate and I shall certainly write a letter to address all the points that I have not managed to address. Bearing in mind the strong feelings expressed this evening, the regulations are ultimately about the rights of women and girls and them being able to access medical treatment in distressing and difficult circumstances, where they have a right to choose what is right for them. We should act in a way to support them in these cases, as the noble Lord, Lord Dubs, and the noble Baroness, Lady Hayter, said, to prevent women and girls being forced to cross the Irish Sea for abortion services. That is why I commend the regulations to the House. I beg to move.
Baroness O’Loan
I wish to draw to the attention of the House that the noble Lord, Lord Kilclooney, was told that he was not permitted to speak, and he left the Chamber in disgust.
The noble Lord, Lord Duncan, suggested that we have discussed these regulations before. We did not know there would be sex-selective abortion to 12 weeks. That is not allowed in Great Britain, and what the law does not forbid is permitted. We did not know there would be abortion to birth for non-fatal disabilities. The noble Lord, Lord Hain, suggested that Ireland has corresponding regulations; the law in Ireland is much more limited. Three of the regulations are manifestly ultra vires. The Government have power under Section 9 to amend these regulations. There is no international legal obligation to give effect to these regulations. The Government could introduce different regulations; it is not this or nothing. I am going to ask the noble Lords to vote “Content” to my amendment. I wish to test the opinion of the House.