Abortion (Northern Ireland) Regulations 2021

Carla Lockhart Excerpts

Monday 26th April 2021 General Committees

[Carla Lockhart (Upper Bann) (DUP)]

The regulations are not just based on the false premise that they are a requirement of international law; they represent a grievous breach of the devolved settlement. For those reasons, and because I believe that the regulations do not reflect the will of the people of Northern Ireland, I cannot support them. We are told that the regulations are being introduced to satisfy the requirements of section 9 of the Northern Ireland (Executive Formation etc) Act 2019, but to understand the constitutional problem that is section 9 it is necessary to appreciate that the case for the vote on 9 July 2019 was greatly strengthened by a claim that it is now clear was not true.

In urging the House to vote for the amendment that became section 9, its proponents suggested that it was required because we in Northern Ireland were in violation of our international human rights obligations. That was completely inaccurate. The CEDAW convention, which is international law and is supposed to define the terms of reference of the CEDAW committee, does not even mention abortion, let alone define a right to it. Moreover, the CEDAW committee is not a judicial body, and it does not have standing to read in a right to abortion, as demonstrated by Professor Mark Hill, QC.

While the Government were deafeningly silent on that point when it mattered during the debate on 9 July 2019, the explanatory memorandum to the regulations belatedly recognises that paragraphs 85 and 86 do not constitute international obligations—the very term that was used to describe them in July 2019. The document states:

“The section 26 power cannot be relied on by the Secretary of State to ensure that the recommendations in paragraphs 85 and 86 of the CEDAW Report are implemented. In particular, those recommendations are not binding and do not constitute international obligations.”

It could not be any plainer, so despite what has been claimed, it is clear that the regulations are not a requirement of international law.

The suggestion that the Government are compelled to act as a matter of domestic law is equally dubious. What exactly is required by virtue of section 9 is a matter of debate; that the Government have an overwhelming majority in the House of Commons is not. The Minister suggests that Parliament gives him no choice in the matter, as though Parliament cannot change an Act of Parliament that it introduced when there was no Assembly, now that the Northern Ireland Assembly has returned. I strongly disagree.

To consider the proper responsibility of the Government, as custodians of the Union, in relation to Northern Ireland, one must first remember that the legitimacy of section 9 and the regulation-making powers rests on a vote on 9 July 2019 on what was not just Northern-Ireland-only legislation, but legislation on a devolved matter, in relation to which 100% of the Northern Ireland MPs who take their seats voted no. Notwithstanding that, the radical and deeply controversial legislative change proposed in what became section 9 was imposed on Northern Ireland by the votes of MPs from the rest of the United Kingdom, none of whom had a mandate to represent Northern Ireland on the issue.

I do not question the fact that Parliament is legally entitled to legislate for Northern Ireland, notwithstanding the fact that certain powers are devolved to the Assembly, but I do question the wisdom of it, and the enduring damage that it will do to the devolved settlement. It opened the door to a regulation-making power, and in principle there is no limit on the number of times the Secretary of State could try to make section 9 regulations. We had one set last year; we have another set this year. All that, even though the Minister of Health in Northern Ireland has stated that there is no legal duty under the current regulations for his Department to commission abortion services.

Each time new section 9 regulations are introduced, they reopen the constitutional sore upon which they rest. Each time, with devolution restored, the powers are used, the Government send out a message that the Northern Ireland Assembly and our current constitutional arrangements are not fit for purpose. Do the Government have no idea how dangerous and how damaging such a message is in the current circumstances? It is also more serious in the sense that it jeopardises an important, distinctive of the part of the Union, which is Northern Ireland, and because we have developed, over more than 50 years, our own approach to valuing the unborn, choosing life and having distinctive life-affirming laws.

The Both Lives Matter “One Hundred Thousand” report, using robust statistical methods, has established that over 100,000 people were alive in Northern Ireland in 2017 who would not have been had the 1967 Act been embraced by the Province. Some people took exception to that and complained to the Advertising Standards Authority, but after a five-month investigation, involving leading statisticians, the Advertising Standards Authority rejected the complaint, concluding that 100,000 was a reasonable claim.

That is in stark contrast to the 9 million aborted here in GB—one baby every two minutes. By the time I finish my speech, another three lives will have been lost or ended. That might not matter very much to some in England, Scotland or Wales, but it matters very deeply to many people in Northern Ireland, touching on a core Northern Ireland distinctive—choosing life.

Reflecting on that, it is vital to remember that the United Kingdom is a Union—a relationship of component parts that are not all the same in every respect. In coming together, we are more than the sum of our parts. Our Union is no more uniform than it is unitary. That means that there is one reason, and one reason only, that Northern Ireland has been overruled. It is not because of any international human rights imperative; it is because a majority of Members of Parliament from Great Britain chose to impose this on Northern Ireland against the wishes of its people and their representatives.

[Richard Graham (Gloucester) (Con)]

I understand the conundrum the hon. Lady is in. She says that the regulations do not reflect the resolved position of Northern Ireland. Surely we are here today precisely because there is not a resolved political position among the representatives of the people in the Northern Ireland Assembly, although the vast majority of people in Northern Ireland want to have the same regulations and rules on abortion that we have in the rest of the United Kingdom and in the rest of the island of Ireland?

[Carla Lockhart]

The hon. Gentleman will know that I disagree with his assessment. As someone who has her roots firmly in Northern Ireland—

[Richard Graham]

As I do, too.

[Carla Lockhart]

Well, living in Northern Ireland and representing a large constituency there, I know that the vast majority of people in Northern Ireland want laws that choose life. They want life-affirming laws and they want laws that help life to continue. That is why, in common with the hon. Member for Penistone and Stocksbridge, I call on the Government to repeal section 9.

[Mrs Miller]

The hon. Lady is doing a very good job putting her case, but I note that she does not refer to the majority view of the UK Supreme Court, which found that it was entirely likely that the position in Northern Ireland would be out of kilter with human rights law. Surely she sees that, at that point, there was a need to act.

[Carla Lockhart]

I thank the right hon. Lady for making that point, which gives me the opportunity to say that had that ruling been binding, which it was not, and as she will be aware, it would have changed Northern Ireland’s abortion laws in only a very, very minor way around foetal abnormality. That does not weigh up against the far-reaching laws that the Government are forcing on the people of Northern Ireland, which are among the most liberal in Europe.

[Angela Richardson (Guildford) (Con)]

This is an emotive subject, as many hon. Members have said. Does the hon. Lady accept that once these regulations have been passed, when the Northern Ireland Assembly is sitting, they can be amended, because abortion is devolved to Northern Ireland, as the Minister said in his opening speech?

[Carla Lockhart]

I thank the hon. Lady for her intervention. It undermines the devolution settlement for the UK Government to continue to railroad through abortion legislation that is not wanted by the people and legislators in Northern Ireland and the people who are elected to take decisions on the matter. There might well be an opportunity to amend or repeal—I trust there will be—but the regulations undermine the Union, and they undermine Northern Ireland’s place within the Union.

[Angela Richardson]

Will the hon. Lady give way?

[Carla Lockhart]

I am sorry; I really do want to make progress.

Northern Ireland has been overruled not because of a human rights imperative, but because the majority of Members of Parliament have decided to overrule the wishes of the people of and representatives in Northern Ireland. In that context, the Government have to confront another dimension of the sovereignty of Parliament: the fact that no Parliament can bind its successors. Most GB MPs who were persuaded to vote for section 9 thought that they were voting for a measure for the time when there was no functioning Assembly. As custodians of the Union, rather than welcoming the restoration of Stormont by imposing more regulations on us through a power that rests on what can only be described as a humiliating majority, the Government should read the introduction to the Act in which section 9 is located, which states that it makes certain changes

“subject to the formation of an Executive”.

Now that the Executive have reformed and the timeframe of the Act has passed, rather than saying, “There is nothing we can do apart from introduce new regulations,” the Government should do the responsible, Union-affirming thing, which is to recognise that times have changed, that Stormont has been restored, and that the Parliament that voted for section 9 no longer exists. In that context, it is incumbent on the Secretary of State not to place the Union under the intolerable pressure of yet more regulations resting on the anti-Northern Ireland majority of 9 July 2019, but to ask this new Parliament to repeal section 9.

[Karin Smyth]

I am grateful to the hon. Lady for giving way. I have listened to her talk a great deal about this undermining the Union. How does she feel that 1,000 women a year seeking refuge in Britain strengthens the Union? We were proud to support those women in their hour of need, but surely it is time for Northern Ireland to take on its responsibilities as a mature society and support its own people.

[The Chair]

Before we move on, I remind all Members please to wear masks when they are not speaking, unless there is a reason not to.

[Carla Lockhart]

Thank you, Mr Hosie, and I thank the hon. Lady for her intervention, which I am trying to recall following your announcement about masks.

I hear much about the 1,000 women, and I empathise with them. I want pathways for those women to choose life. We need services in Northern Ireland that put their arms around those women and say, “Do you know what? There are other options. The option is to choose life.” I want to see those pathways. I want to see investment in the family unit and in women choosing life. I hear much about the women, and I empathise fully with them, yet I hear so little about the unborn. I hear so little about the baby being aborted. Unfortunately, those little babies do not have a voice, so I feel that I have to have a voice for those that are going to be aborted, their life ended so brutally in the womb.

I call on all Members who believe in the Union and recognise the huge damage resulting from repeatedly using a regulation-making power designed for a time that Stormont was suspended, when it is now fully functional, and whose mandate rests on a vote that, rather than expressing the reality of our Union, manifests instead the humiliation of Northern Ireland, to vote against the regulations. I call on them to press the Government to propose the repeal of section 9, and leave the issue with democratically elected politicians in Northern Ireland.

We are all “fearfully and wonderfully made”, and all unique individuals. As I left for London this morning, I left my little two-year-old boy Charlie, and walked away from him with a broken heart, thinking of the millions of babies whose lives have already been ended, and those that will potentially, under the regulations, be ended in Northern Ireland. I want to impress on Members that they should vote against the regulations and allow Northern Ireland legislators to decide on the issue. I assure everyone that the battle has not ended and the last has not been heard from me and many in this Parliament who will continue to be a voice for the voiceless, and stand up for both lives in every pregnancy.

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[Huw Merriman]

It should not be unusual for a court to determine its views on the law and indeed on whether the Government and Parliament are complying with the law of the day. I would have thought that that was a fundamental separation of powers point. If we do not have a court taking that role I suggest there is something fundamentally wrong with our constitution, which has served us well over hundreds of years. No doubt my right hon. Friend will want to expand on that point in his speech.

The matter has been looked at by each of the institutions that are key to our separation of powers principle, as I have just mentioned with regard to the Supreme Court. In its judgment on 7 June 2018 it made a declaration that the legal position for abortion provision in Northern Ireland was incompatible with articles 3 and 8 of the European convention on human rights, and therefore the UK’s legal obligations. The Supreme Court made it clear that Parliament had three options, one of which was—again, I quote Lady Hale—to

“share our view and pass an Act of Parliament to put things right, which is appropriate if the matter is not simple and easy to solve, and complex arrangements have to be put in place.”

That of course is exactly what Parliament duly did in July 2019. It is at that point that I take exception to the reference made by my hon. Friend the Member for Penistone and Stocksbridge to Parliament’s response to the previous ruling on prisoners’ rights. This is a completely different matter, because in this instance Parliament legislated to take the court’s determination into account. Obviously in the example that my hon. Friend raised it did not.

That takes me on to the second institution in our separation of powers model—ourselves. Section 9 of the Northern Ireland (Executive Formation etc) Act 2019 provided for reform of Northern Ireland’s abortion law and placed a legal obligation on the Secretary of State to make it possible to get access to local abortion care in Northern Ireland. I was actually here at the time; the hon. Member for Upper Bann tells me that I was somehow fooled into thinking that we passed that just because the Northern Ireland Executive was not sitting. I voted very much on the basis that it was clear that the Court had told Parliament that our legislation was out of kilter with our legal requirements. As this is the mother of Parliaments, I regard it as my job to ensure that Parliament complies with the law by creating new laws to do so. I certainly was not fooled as far as that was concerned.

[Carla Lockhart]

Does the hon. Gentleman accept that the explanatory notes outline that it was not an international law requirement? In hindsight, that was misleading.

[Huw Merriman]

I do not think it was, because I come back to the Court’s interpretation—a clear determination that on two of the articles of the European convention on human rights, the UK was failing its legal obligations. Notwithstanding my interest in ensuring that our abortion laws are updated, I took the fundamental view that it is Parliament’s right to make a determination that we comply with our international legal obligations. My goodness, if we do not on matters such as this, where does it end? How can we lecture other countries around the world about their need to comply with those obligations? As I say, the votes in favour were 328, and 65 against. There was no whipping, and there was an opportunity for a grace period to be inserted should the Northern Ireland Executive and Assembly come back together.

Let me move to the third institution: the Executive. I note that Parliament placed a legal obligation on the Secretary of State to enable access to local abortion care in Northern Ireland. The original iteration of the regulations changed legal frameworks around abortions, but did not require that services be commissioned or funded. As we heard, in April 2020, the Northern Ireland Minister of Health, having failed to gain the agreement of the Northern Ireland Executive, refused to commission or fund abortion services. As a result, the only abortion services being funded and put together were those run by health trusts out of their existing budgets and staffing.

The regulations simply empower the Secretary of State to direct local bodies to fund and commission services, ensuring that abortion services are and remain available locally. I fully support the granting of the regulations; they are the final part of the powers that started with the Court’s determination that the UK—and, indeed, Northern Ireland—rules did not comply with our international obligations. Parliament voted in a free vote to fix those rules and ensure change in Northern Ireland, which the Executive have done their best through the Government to deliver, but it needs these further powers to do so.

I have tried to give a legal justification for where we are. I could return to the reasons why, to a certain extent, Lady Hale thought that perhaps we were not best placed to make that determination, because we are driven by other matters. I have been to Northern Ireland. I have met the women who have suffered incalculable harm and damage as a result of the law in Northern Ireland. It is an absolute outrage that that has occurred, and it is down to this Parliament to make sure that matters are fixed so that women are treated with much more dignity in the future than they have been in the past.

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[Karin Smyth]

We do not have time to debate this issue now, but it is a well-debated issue. However, of the people whom we are talking about, many of them do not choose for many reasons—that is their choice, in my view; the hon. Lady and I disagree about that—to continue a pregnancy, for whatever reason. Of course, what this process catches—it is why it is cruel and barbaric—is also those women who are desperate to have a family, but their child is going to die. They are carrying back those foetal remains in the most barbaric of circumstances. Nobody had concern for those women. In conclusion—

[Carla Lockhart]

Will the hon. Lady give way?

[Karin Smyth]

I will finish; I need to finish now. Practical steps are needed. In Britain, for example, there are many good examples of third-sector provision of sexual health services. I have pressed the Minister on this issue before. We need to learn the lessons about sexual health services from the rest of Britain. For over 20 years, we have been commissioning third-sector providers to run our sexual health services in Britain and I think that Northern Ireland deserves that quality of service.

I echo the points made by the right hon. Member for Basingstoke, because the CEDAW recommendations do not just apply to abortion; they apply to sexual health services and education, particularly for young people, in general. When we hear so much currently about violence against women and girls, and the prevalence of pornography and so on in images for young people and how young people are targeted, there is real and deep concern about education provision for young people in Northern Ireland, and how they will understand their own sexual health, and how we ensure that they have a good attitude to sexual health and relationships. That is more crucial now after the pandemic than it was before, and these regulations also allow us to do that.

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[Sir John Hayes]

The Minister says that, but it is clear from reading the regulations that, in certain circumstances, abortion can take place up to birth and that the 1967 Act’s insistence on two medical practitioners authorising abortion will not necessarily apply in Northern Ireland. I regard both those things as a more permissive application of the law than the one that pertains.

The 1967 Act may well be applied in theory more than in practice—I should not want to comment on that—but at the very least the risk of the more permissive regime that my hon. Friend the Member for Penistone and Stocksbridge described concerns the people of Northern Ireland, who fear that what is imposed on them might not only go against the expressed will of the people, but be altogether worse than that.

The hon. Member for Walthamstow made it perfectly clear that the essence of the argument used when the law was passed was that as there was no Assembly we had to act. She argued:

“I understand that, if it was not for the fact that we do not have an Assembly, this would absolutely not be the right way forward”.—[Official Report, 9 July 2019; Vol. 663, c. 183.]

That is what she said, with not a great deal of elegance; none the less, her point is made: it would absolutely “not be the right way forward.”

If it was “not the right way forward”, why on earth have we continued to pursue this path? When the Assembly was reformed, with a new Government, we had an opportunity to think again. It would not have been a huge step, given that the Assembly had the chance to vote on the matter. It has all the appearance of the Government dictating their will and of Parliament insisting that devolution counts only when the devolved Assemblies agree with people here. That is not something that you, Mr Hosie, I nor any democrat in this place could possibly sanction.

We must think too about the consequences for the Union and the continuing pertinence and relevance of devolution. If people in Northern Ireland come to believe what I have suggested—that their right to self-government is condoned by a Parliament that is so arrogant that it says that when they do not agree with the prevailing view here their rights can be torn away from them—how can they possibly continue to believe in the settlement or, indeed, even in the Union?

I was recently contacted by a clergyman from County Fermanagh, who decried the regulations as the final nail in the coffin of devolution. Indeed, an open letter was sent to the Prime Minister from 250 church leaders opposing today’s proposals. On at least four occasions, we have actively ignored the expressed will of Northern Ireland’s representatives on a matter of great importance to many in the Province. First, as has been noted, on 19 July 100% of Northern Ireland Members who take their seats voted against the process that resulted in section 9—a Northern Ireland-only provision on a devolved matter. Let me repeat that: a Northern Ireland-only provision on a devolved matter—a matter expressly devolved to Northern Ireland, yet it was imposed despite that opposition from Members who hold a specific mandate to represent the people there. At that moment we told the people of Northern Ireland that the voices of those elected to represent them would be ignored, and their history and deeply held views on this matter of conscience disregarded. By extension, we told the people of Northern Ireland that their opinion did not matter.

Secondly, we ignored the voice of the people of Northern Ireland in the consultation on the 2020 regulations, in which 79% of participants said they did not want the measure to proceed—seventy-nine per cent. is an even greater percentage than I managed to secure of the vote in South Holland and The Deepings—not much greater, but somewhat.

Thirdly, we ignored the voices of the people of Northern Ireland when we insisted on welcoming the restoration of the Northern Ireland Assembly while simultaneously ignoring its clear vote last year to reject the 2020 regulations. We now seek to forsake them again by forgoing further public consultation on the new regulations, at a time when the Assembly is working as intended, providing extensive and conscientious scrutiny of an imposed policy of the utmost sensitivity and profound local concern.

[Carla Lockhart]

I noted this with regard to my own speech but did not reference it. If the Committee was forcing a devolved issue on Scotland or Wales, would Members in this place agree to it? I think back to two examples. In 1957, Westminster voted to impose the flooding of the Tryweryn valley in Wales—

[The Chair]

Order. I have allowed the hon. Lady lots of leeway, and although some of this does touch on constitutional issues, the 1957 flooding in Wales is outwith the scope of the debate.

[Carla Lockhart]

Thank you, Mr Hosie. My point is that Welsh MPs voted against that, but the Government forced it through, which was recently described as “shameful”.

The same applies with the poll tax in Scotland, about which David Cameron apologised in 2006. One would hope that the lesson had been learned about not forcing things on the devolved Administrations, because that undermines and damages the Union. Therein lies my broad point.

[Sir John Hayes]

That is true, and the Committee that considered this issue before this Committee said that it was unprecedented in respect not only of Northern Ireland, but of any of the devolved nations. The decision that this Committee looks set to take—I will not put it more strongly than that—in supporting the regulations is so exceptional as to be noteworthy, as I described, and the hon. Lady has amplified.

It has been acknowledged that these issues understandably give rise to strong views, but on a matter as sensitive as this what is happening is particularly reprehensible. It would be reprehensible on a constitutional basis, regardless of the issue, but on a matter that causes such grave concern in Northern Ireland it is all the more so.

Today’s regulations are the continuation of a process that has fallen far short of the standards to which we as legislators should hold ourselves. I am not for one minute suggesting that people in Scotland and Wales think as the people of Northern Ireland do concerning abortion, but the precedents flowing from the way in which we are treating Northern Ireland with respect to the sustainability of the current devolution settlement across our kingdom are obvious.

Do not tell me that this is a matter of the sovereignty of Parliament, which we have heard suggested once or twice. Parliament has been sovereign since 1707. The fact that it can do certain things does not mean that it must do all things or should even do those things that it can. Parliament is sovereign by way of our constitution. By that constitution, it constrains itself by convention, and there are few more important conventions than upholding the Union and the Acts of Parliament that underpin it.

I recommend our Attorney General’s views on judicial activism and the creeping role of the Supreme Court in making public policy. If those views are not sufficiently persuasive, I recommend the views of the former Supreme Court judge, Lord Sumption, who has been clear that democratic legitimacy relies on the judiciary knowing what its constraints should be.