Abortion (Northern Ireland) Regulations 2021

Huw Merriman Excerpts

Monday 26th April 2021 General Committees

[Huw Merriman (Bexhill and Battle) (Con)]

Given the various opinions and comments that I have been listening to, I thought it was poignant and relevant to reflect on the words of Lady Hale in the Supreme Court judgment of 2018, when the Court determined the matter of abortion in Northern Ireland. She said that

“this is not a matter on which the democratic legislature enjoys a unique competence. It is a matter of fundamental human rights on which, difficult though it is, the courts are as well qualified to judge as is the legislature. In fact, in some ways, the courts may be thought better qualified, because they are able to weigh the evidence, the legal materials, and the arguments in a dispassionate manner, without the external pressures to which legislators may be subject.”

I contend that she might have had this room and this debate in mind when she made that point.

[Sir John Hayes]

Will my hon. Friend allow me to intervene?

[Huw Merriman]

How could I refuse?

[Sir John Hayes]

My hon. Friend is making an extremely contentious point, of course, with his usual style and elegance. He is saying that the Court took the view that it was better able to judge sensitive, controversial matters than democratically elected people are. That is, by the way, precisely the same view it took about Brexit, and it is extremely controversial and in my view reprehensible.

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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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[Sir John Hayes]

But these regulations apply to Northern Ireland, and what I said was that the people in the Committee who are elected in Northern Ireland by the people of Northern Ireland have spoken with absolute clarity about the views there—expressed not only in the Assembly and by both communities in Northern Ireland, by the way, but in every poll and test of opinion that has been taken in Northern Ireland, including among women. I think we have to pay some heed, rather as I pay heed to the hon. Lady’s experience from her own part of the country, to those who speak for and represent Northern Ireland.

It is unsurprising—

[Huw Merriman]

Will my right hon. Friend give way?

[Sir John Hayes]

I will. I am going to give my hon. Friend a short lecture on law in a minute, because he is confused about it, as he was the last time we met in this Committee. Before I give way, perhaps he will chew on this. The Act to which the Good Friday agreement gave rise, the Northern Ireland Act 1998, says, at section 26, that there are only three grounds on which Westminster can intervene in a devolved matter in Northern Ireland: giving effect to international obligations; safeguarding defence or national security; and protecting public safety or public order. Given that we now know, from the explanatory notes for the Committee, that these were not international obligations, on what grounds are we doing what this Committee is being invited to do today, and on what grounds did we in Parliament pass the law that gives rise to these regulations?

[Huw Merriman]

I do not need a lecture in law because, quite frankly, I do not think my right hon. Friend is qualified. I referenced the judgment from the Supreme Court, which is qualified to give a judgment, that made it absolutely clear that the international obligations with regard to articles 3 and 8 of the European convention on human rights were not being complied with. Ultimately, neither of us is qualified on that front, unless he is going to become a Supreme Court judge.

The point that I wanted to make was on the suggestion that the Government, in what was a free vote, managed to dupe MPs to vote 328 in favour and 65 against. My right hon. Friend knows as well as I do that, when the Government try to fix free votes, Parliament, because it knows its own mind, tends to do the opposite of what the Government say. Does he really think that MPs are completely stupid in a free vote and do not know their own mind?

[Sir John Hayes]

I would never say that all MPs are completely stupid, as you know, Mr Hosie, but if my hon. Friend does not value as highly as he ought to the 1998 Act and the devolution settlement that arose from the Good Friday agreement, perhaps he will recognise two other pieces of law that are directly pertinent to our considerations.

The first is the 2005 agreement, whereby the devolved constitutional settlement in Northern Ireland established the consent for constitutional change, described as a fundamental principle of devolution. It made clear that in terms of constitutional change it was essential that the Northern Ireland Assembly took a view, and indeed made a decision, that was consistent with anything that this Parliament did. That is the underlying principle of consent in the devolved arrangement.

Moreover—I know my hon. Friend will have read his papers very closely before coming to the Committee—the Delegated Legislation Committee that looked at the matters before us made it very clear that what we are being asked to do today is entirely exceptional in terms of the devolution settlement for Northern Ireland or anywhere else in the United Kingdom. Unprecedented was the word that the Committee that studied the regulations before they came to us used to describe them.

It is unacceptable to argue that because we took a decision when there was no Assembly, now that the Assembly has been re-established, we should ride roughshod over the view that it took and that it takes about the issue. It is inexcusable that the explanatory memorandum should suggest that the new regulations, which are so much wider than the 2020 regulations, should depend on the consultation process for the 2020 regulations, which in any event was sharply criticised as being far too short and deeply controversial.

Having had a deeply controversial and inadequate consultation process for the first regulations, we have now introduced regulations that are more wide ranging and that could, as my hon. Friend the Member for Penistone and Stocksbridge suggested, lead to—