Abortion Services Commissioning: Northern Ireland

Fiona Bruce Excerpts

Tuesday 14th December 2021 Westminster Hall

[Fiona Bruce (Congleton) (Con)]

It is a pleasure to follow the hon. Member for Upper Bann (Carla Lockhart), my co-chair on the pro-life all-party parliamentary group. I commend her for her informed and sensitive speech and for all that she does to be a voice for the unborn in this place.

I rise to speak in this debate to support the right of the Northern Ireland Assembly, representing the people of Northern Ireland, to determine the way forward on abortion—a matter devolved there for some 100 years. I will also highlight the problems arising from the 2020 and 2021 regulations.

I agree that this is a sensitive matter; it is one of fundamental importance in terms of the lives of the unborn, respecting the wishes of the people of Northern Ireland, and respect for the long standing Sewell convention of devolution—that the UK Parliament does not normally legislate in respect of devolved matters without the consent of the devolved legislature. Before I move on to the particular problems of the 2020 and 2021 regulations, I will first refer to two other issues: the Secondary Legislation Scrutiny Committee and the House of Lords Select Committee on the Constitution Abortion (Northern Ireland) Regulations 2021. There were multiple submissions to the Secondary Legislation Scrutiny Committee earlier this year as it considered the Abortion (Northern Ireland) Regulations 2021. Those submissions illustrated the worrying damage that imposing such changes could inflict on the Union. I will quote just one, which says that the Secretary of State’s new powers would

“give him complete control of policies related to abortion and education in Northern Ireland, which are devolved matters. They will take away from the people of Northern Ireland any power to affect any abortion policy the Westminster government choose to impose”,

and that,

“given the current unrest in the province, these measures could do untold damage to the already fragile Northern Ireland Assembly and the Good Friday Agreement.”

Those are profound implications.

I turn to the House of Lords Select Committee on the Constitution, which published a report on the Abortion (Northern Ireland) Regulations 2021 in April highlighting several constitutional issues arising from the regulations. The Committee stated:

“The 2021 Regulations raise an important issue concerning devolved competence. On the one hand the Secretary of State cites a statutory duty, arising from section 9 of the 2019 Act, to make the 2020 and 2021 Regulations… On the other hand, one of the governing parties in the Northern Ireland Executive opposes the Regulations as an unwarranted interference with the devolution arrangements… The prospect of different laws on abortion operating in Northern Ireland would cause substantial legal and political difficulties, and risk undermining the devolution arrangements. We urge the Government and the Northern Ireland Executive to adopt a more constructive approach to resolve this matter.”

I agree.

I now turn in detail to the problems arising from the 2021 and 2020 regulations. Some of these points have been touched on, very eloquently, before; forgive me, Mr Pritchard, if I touch on them again. They are worth repeating. The 2020 regulations allowed the Westminster Government to introduce a completely new abortion framework to Northern Ireland—even broader than the already extremely permissive regulations applicable here. For example, the regulations allow for an abortion, without the need for any ground or reason to be given, for any pregnancy up to 12 weeks. That, effectively, permits sex-selective abortion, as it is now possible to tell the sex of an unborn child between seven and 10 weeks.

Government Ministers here have repeatedly stated that sex selection is not a lawful ground for the termination of pregnancy. When sex-selective abortion was debated in Westminster in 2015, a Minister described it as an “abhorrent practice”. In permitting abortion on demand up to 12 weeks, the regulations go far beyond the law in Great Britain. Indeed, they are even more permissive than required by the CEDAW report, which I will come on to shortly.

The 2021 regulations are even broader, as they deal not only with abortion but with wider issues such as sex education. However, no formal consultation has taken place on the regulations. The Government relied on a mere six-week consultation on the 2020 regulations—six weeks that ran during the general election campaign of 2019 and in the lead-up to Christmas that year.

Then there is the question of the cost of implementing this new framework for abortion in Northern Ireland, which is shrouded in confusion. There was no impact assessment for the 2020 regulations. It appears that the UK Government—the Minister may correct me—have given no indication of how costs will be borne, arguing that this is a matter for the Department of Health in Northern Ireland. However, the Department of Health in Northern Ireland considers this funding to be a matter for the UK Government.

There is the further legal point of controversy as to whether the obligations in the Northern Ireland (Executive Formation etc) Act 2019 were a one-off, so that the 2020 regulations met them, which is the view of the former Attorney General for Northern Ireland, John Larkin QC, or whether those obligations are continuing, which I understand is the view of the Government.

It is critical to remind ourselves, as colleagues have done, that the minor UN CEDAW committee was not the UN speaking as a whole, which was often the impression that we were given when we were discussing the Northern Ireland (Executive Formation etc) Act 2019. Those discussions were far too brief. I remember one important debate on the Bill, on 18 July, that lasted just one hour. On another occasion, if I remember correctly—and I stand to be corrected—we were asked to look at House of Lords amendments in just 17 minutes, which was totally inadequate for the consideration of such important legislation.

That CEDAW committee was not the UN speaking as a whole and, as we have heard, its recommendations are neither binding nor international law. That has been specifically confirmed by the Northern Ireland Office itself in its explanatory memorandum to the Abortion (Northern Ireland) Regulations 2021, which states, with reference to paragraphs 85 and 86 of the CEDAW report:

“In particular, those recommendations are not binding and do not constitute international obligations.”

The whole premise on which we passed the 2019 Act was false.

On the basis of those non-binding recommendations, the Government seek, through the 2021 regulations, to give the Secretary of State sweeping powers to direct not just Ministers but civil servants and health bodies in Northern Ireland to implement a broad abortion framework. That is a far wider group of people and bodies than envisaged by the Northern Ireland Act 1998, which allows the Secretary of State to give direction to Ministers or a Northern Ireland Department only in certain circumstances, namely,

“for the purpose of giving effect to any international obligations”

—and we have agreed today, I hope, that the CEDAW recommendations were not international obligations—or for the purpose of

“safeguarding the interests of defence or national security or of protecting public safety or public order”.

The wide-ranging powers given to the Secretary of State by the 2020 and 2021 regulations cannot be justified on any of those grounds.

I turn now to commissioning. There is no reference to what services might be commissioned in either the 2020 or the 2021 regulations. The regulations are now, as Mr Pritchard has said, the subject of a pending court decision, which makes for a further legal complication. The requirement to commission services under the direction of the Secretary of State may disappear if that legal challenge is successful, leaving a legal loophole. What is particularly concerning about the commissioning, however, is that the regulations do not include any proposed inspection arrangements for premises conducting abortions, whether NHS or private. It would appear that the Northern Ireland Regulation and Quality Improvement Authority has no powers to inspect any premises to compare with those of the Care Quality Commission in England. If that is the case, that omission is doubly concerning when we consider recent reports by the CQC of abortion clinics in England. In the last few weeks, a British Pregnancy Advisory Service clinic in Middlesbrough was rated inadequate after inspectors found that medicines were not stored safely and that systems to protect people from abuse were not “effective”, while a Doncaster BPAS clinic was put into special measures following an inspection. It is essential that proper provision for the inspection and regulation of abortion services is in place in Northern Ireland.

As mentioned, abortion remains a devolved matter that rests with the competency of the Northern Ireland Assembly. The Northern Ireland (Executive Formation and Exercise of Functions) Act 2019—which, in section 9, includes the order-making power under which the regulations were created—was imposed on Northern Ireland at the behest of parliamentarians from other parts of the UK. No Northern Ireland MP in Westminster supported the passing of that Act.

The Northern Ireland Assembly have been up and running for some time. It not only has the legislative competency to act on abortion-related matters but, as we have heard, it is in the process of doing so through the Severe Foetal Impairment Abortion (Amendment) Bill. Respect for the competencies of that Assembly and the devolution settlement surely dictates that all other abortion matters should be determined by the Assembly, particularly since abortion has been a devolved matter for so long.

The Severe Foetal Impairment Abortion (Amendment) Bill seeks to address the discriminatory nature of abortion law implemented in Northern Ireland under regulation 7 of the 2020 regulations, which permits abortion up to birth on the grounds of disability. It is a matter of increasing concern across the UK in terms of its discriminatory aspect, as we heard in the House only two weeks ago in a debate on the proposed Down’s syndrome Bill.

Application of regulation 7 would very much go against the progressive tide of thinking in that respect. The fact that abortion up to birth for serious foetal disability is already in effect in GB is no reason to implement it in Northern Ireland—particularly as it is now considered to be deeply concerning and ill-defined legislation. I know that because my son was born with a club foot. I do not consider that to be a serious disability. We have seen it corrected; no one looking at my son today would know that he had been born with that disability.

Even the CEDAW report on which the regulations rely stated:

“In cases of severe fetal impairment, the Committee aligns itself”

with the UN

“Committee on the Rights of Persons with Disabilities in the condemnation of sex selective and disability selective abortions, both stemming from…negative stereotypes and prejudices towards women and persons with disabilities.”

With great sadness, I conclude that imposing the ill-thought-through and hurried-through regulations would demonstrate a profound lack of respect for the people of Northern Ireland and their elected representatives. As I have repeatedly said in this House—I refer to my remarks on 8 July, 18 July and 9 September 2019, and on 8 January 2020—the hurried handling of the issue of abortion, which is a devolved policy area, and the Northern Ireland (Executive Formation) Act and the subsequent introduction of regulations has been, in my opinion, unconstitutional, undemocratic, legally incoherent and utterly disrespectful to the people of Northern Ireland.

[Mark Pritchard (in the Chair)]

I ask the hon. Member for Strangford (Jim Shannon) to wind up at about 3.38 pm, to allow the Front-Bench Members 10 minutes each.