Northern Ireland (Executive Formation) Bill

Debate between Emma Little Pengelly and Edward Leigh

3rd reading: House of Commons & Committee: 1st sitting: House of Commons & Report stage: House of Commons
Tuesday 9th July 2019 Commons Chamber

[Sir Edward Leigh]

I am going to deal precisely with that point if my hon. Friend will be patient.

The process we are undertaking this afternoon does not assist the talks process—quite the opposite. Some of those who support these amendments and new clauses will claim to generally accept this argument but suggest that abortion is different because there is a human rights imperative to override the devolution settlement. However, significant misinformation has been spread with regard to the status of the law on abortion in Northern Ireland in relation to human rights. Specifically, as we have heard, a number of claims have been made with regard to the CEDAW and a recent report by the CEDAW sub-committee on Northern Ireland.

First, let us consider the position of the legislation on abortion in Northern Ireland in terms of the Human Rights Act 1998 and the European convention on human rights. It is important to stress that at this point there has been no declaration of incompatibility with regard to the law on abortion in Northern Ireland. Yes, in the Northern Ireland Human Rights Commission judgment released in June 2018, a majority of judges indicated that if the plaintiff had standing in the case, they would have made a declaration of incompatibility with regard to cases involving fatal foetal abnormalities and in cases of sexual crime. However, these non-binding comments do not constitute a declaration of incompatibility.

[Emma Little Pengelly]

Will the right hon. Gentleman give way?

[Sir Edward Leigh]

I had better keep going to obey your ruling, Madam Deputy Speaker, and I want to reply to this point, which has been made in an intervention.

In addition, the Supreme Court, again in non-binding comments, unanimously found that the law on abortion in Northern Ireland was compliant with the European convention on human rights in restricting access to abortion on the grounds of non-fatal disabilities. This part of the judgment is conveniently often forgotten in the rhetoric of proponents of change in the law on abortion in Northern Ireland. One might instead think, listening to the arguments made by some, that the Court found that the decriminalisation of abortion is required on the basis of human rights. That is simply false and needs to be understood as such. Individuals are of course entitled to argue for the decriminalisation of abortion, but they are not entitled to make this claim on the basis of human rights conventions or jurisprudence.

A future panel of the Supreme Court might well make a similar finding to that made in the Northern Ireland Human Rights Commission case. Indeed, a properly constituted case is currently before the courts in Northern Ireland with regard to fatal foetal abnormality. However, even if that were the case, the incompatibility to be resolved would be on the narrow grounds of some of the most tragic and difficult cases imaginable—that of fatal foetal abnormality, not on the grounds of decriminalisation of abortion. Furthermore, section 4(6) of the Human Rights Act makes it clear that even had the Supreme Court determined that a piece of primary legislation was incompatible—which it did not in this case—and made such a declaration, a declaration of incompatibility

“does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given”

and

“is not binding on the parties to the proceedings in which it is made.”

Indeed, Baroness Hale pointed out that, even in cases where there is a ruling of incompatibility, that does not compel the legislature to change the law. It still has what she describes as a “do nothing” option.

Northern Ireland Backstop: Conditional Interpretative Declaration

Debate between Emma Little Pengelly and Edward Leigh

Thursday 21st February 2019 Commons Chamber

[Sir Edward Leigh]

I think the EU probably would object politically, but that is not enough. That is the point. If it does not want the interpretative declaration to have effect and provide an end date for the backstop, there is only one way out of it: it must refuse to ratify the treaty. A protest or talk of further negotiations is not enough, and that in a sense is the beauty of this. That is why we have these vehicles in international law, and why they have been used on several occasions in the past by countries such as Argentina and others.

There is no point protesting. My hon. Friend says that this is a complicated legal argument, but it is not. It is terribly simple. It is incredibly simple. Under international law one can say, “We interpret this treaty in such a way.” We can deposit that when we ratify the treaty. It is not a codicil as such or a letter; it is deposited with the treaty and has all the legal enforceability of a treaty. If those who are ratifying the treaty with us want to escape from its obligations, there is only one way out: they have to refuse to ratify it. I suggest—I will make this clear again before I sit down—that for political reasons the EU would be unlikely to do that, because it would put all the onus of a no-deal scenario on to it.

[Emma Little Pengelly (Belfast South) (DUP)]

I thank the right hon. Gentleman for securing this debate—what he says is incredibly interesting, and I defer to him absolutely because he knows much more about this issue than I do. Could there be a situation where the UK makes a conditional interpretive declaration? He has indicated that such a declaration could not negate an aspect of the treaty, but could the EU come to the conclusion that it is not a valid interpretative declaration, due to the fact that it is trying to do something it cannot do—to negate something—and that because it is not valid the EU can ignore it, so the scenario that the right hon. Gentleman has indicated would not arise?

[Sir Edward Leigh]

That is an interesting point. I am interested in how the Minister will respond, but I think I can give a firm and strong reply. There is no wiggle room around this. The EU cannot say, “Well, you made this interpretative declaration. We don’t agree with it. We are going to carry on and ignore it, and we will impose this backstop on you forever.” There is only one way out of it. I had better be careful in what I say, but I think I am right in saying that at the time of the ratification of the treaty, or within a reasonable time limit, the EU has to refuse to ratify the treaty, otherwise it is bound by it and that declaration is part of that treaty. As far as I am aware, there is absolutely no wiggle room. I know this issue is terribly important for the DUP. There is a lack of trust, and the DUP wants to shut down all possible wiggle room for the EU to get out of this. As far as I am aware, however, there is no way out other than for the EU to refuse to ratify the treaty. If the Minister disagrees with that he can say so when he responds to the debate.

[Emma Little Pengelly]

Could the right hon. Gentleman clarify that point? In the sphere of international law and disputes, if such a declaration is made and there is a dispute about the validity of that declaration—for example, if we believe it to be valid, but the EU does not—how will that issue be resolved or arbitrated? If there are two inconsistent positions, the EU could refuse to react by ignoring and refusing to accept the validity of the declaration. In international law, is there a clear arbitration pathway for that?

[Sir Edward Leigh]

The hon. Lady asks how it could be resolved by the EU. It simply refuses to ratify the treaty. There is no deal—end of story. The interpretative declaration falls, the withdrawal agreement falls. We have made it clear that we are only going to ratify the treaty on the basis of the interpretative declaration that there is an end date to the backstop. They say, “We don’t agree with that, so we’re not going to ratify the treaty”, and that is the end of it.

We cannot impose this. I think people have misunderstood in thinking that we can somehow impose this idea I have been talking about on the EU. We cannot impose our ideas on the EU, but it has to make it clear that it will refuse to ratify the treaty.