Abortion (Northern Ireland) (No. 2) Regulations 2020

Baroness Smith of Basildon Excerpts

Monday 15th June 2020 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, it is exactly a year ago yesterday that the noble Lord, Lord Duncan—then without his beard—and I sat opposite each other across the Dispatch Box. We had a long and detailed debate on this very issue of abortion in Northern Ireland while discussing the Northern Ireland (Executive Formation etc) Bill, which is now an Act. It was evident then, as tonight, that this is a subject on which there are strong and deeply held convictions. For some, no law permitting abortion could ever be acceptable. For others, it is a fundamental issue on both health and human rights grounds that abortion services should be available safely and within a legal framework.

Until the Northern Ireland (Executive Formation etc) Act, it remained a criminal offence to access abortion in Northern Ireland in almost any circumstances, unlike in the rest of the UK. We have heard about CEDAW this evening, which specifically referenced the Northern Ireland position as a “grave and systematic” violation of rights. The UK Supreme Court in 2018 found that the law on abortion in Northern Ireland was, as we heard earlier, “untenable and intrinsically disproportionate” and in need of “radical reconsideration”. It made particular reference to abortion not being legal even when pregnancy was as a result of rape. So, there was no access to safe and legal abortion in Northern Ireland other than through a very limited provision, which had itself faced a number of legal challenges and interpretations.

In the legislation last year, abortion in Northern Ireland was decriminalised. As a result, today, across the whole of the UK, existing legislation makes provision for the termination of a pregnancy. But it was also made clear last year that regulations would follow to put in place in Northern Ireland a framework for those abortion services, with guidelines on how the law would operate if the Assembly was not restored by 21 October 2019. In the event that it was not, it would be a statutory obligation for the UK Government to bring forward the regulations.

I appreciate that a number of noble Lords referenced in the debate that, last week, the Northern Ireland Assembly expressed a view against part of the regulations before us. However—this is an important point—it did not bring forward any alternative proposals to address the findings of CEDAW or the Supreme Court to make sure that, as part of the UK, Northern Ireland also ensures that it is compliant with the UK’s human rights obligations. If these regulations do not pass tonight, and if the fatal amendments of the noble Baroness and the noble Lord pass, the current legal framework, which is in place through the “made affirmative” order that we are discussing, will fall. It would remain the case that abortion is decriminalised and, as my noble friend Lady Hayter said, that the citizens of Northern Ireland could travel to the UK, with travel and accommodation provided, to access free abortion services—although that is extraordinarily difficult at the moment—but the legal framework as outlined in this instrument would not be available.

These regulations provide clear guidance, which is of paramount importance to healthcare professionals. It is highly significant that the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives and the BMA support the passing of the regulations and oppose the amendments; I am sure that other noble Lords have had similar communications.

On the specific issue of constitutionality, as was raised by noble Lords, it is highly unusual for this House to support fatal Motions through an SI; I think this has been done some six times since 1945. As an unelected House, our role on secondary legislation is limited and narrow. At times, that is frustrating, but it is the role of your Lordships’ House.

I have a couple of questions for the Minister, mainly about how services will be provided and, given that the UK Government have responsibility for complying with human rights obligations, as I understand it, what the Minister can do ensure compliance with these regulations. In his introduction, the Minister recognised that the Northern Ireland Assembly could amend the regulations in the future if it chose to do so. If it does, where does the responsibility lie for compliance on human rights issues, as outlined by the UK Supreme Court?

Also, as the noble Lord, Lord Balfe, mentioned, the BMA is concerned about the support available to women seeking advice and healthcare professionals. What action can be taken and what support can be given to provide exclusion zones outside confidential abortion services, thus protecting the women who need such advice and the people who work in them?

I support the regulations and oppose the amendments.