Abortion (Northern Ireland) Regulations 2021

Debate between Carla Lockhart and Huw Merriman

Monday 26th April 2021 General Committees

[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.