Abortion (Northern Ireland) (No. 2) Regulations 2020

Ian Paisley Excerpts

Monday 8th June 2020 General Committees

[The Chair]

Colleagues, we meet in extraordinary circumstances, but an awful lot of effort has gone into preparing this room. If anyone is puzzled, the purple cards showing a tick indicate where you can sit. No members of the general public will be coming into the room, so you can sit anywhere at the back. However, if you intend to speak, either project your voice or ask a colleague to swap seats with you so that you are near a microphone. I appreciate that a few colleagues have never served on a Delegated Legislation Committee before, and I am sure that everyone will bear with those Members as they seek to catch my eye.

The room has been assessed by Public Health England to be able to hold 22 people. As I have said, spaces are already clearly marked. Unmarked spaces must not be occupied. The usual convention of a Government side and an Opposition side is waived on this occasion, so Members may sit anywhere. Hon. Members are welcome to use the marked spaces in the Public Gallery and will be able to participate from there. For that reason, members of the public and the media are not permitted in the room. However, our proceedings are being broadcast over the internet on parliamentlive. Unfortunately, it has not been possible to arrange for video in a room of this size, so the broadcast is audio only. If you are not a member of the Committee but wish to speak, I ask that you leave the room after making your contribution, to allow others in to speak. You can follow the debate on the broadcast.

As the debate comes to a close, only members of the Committee, who are able to exercise a vote, should be present in the room. Let me explain what will happen if the number of people present in any part of the room exceeds a permitted number. I do not know whether some colleagues who are now in the Chamber, waiting to ask questions, will be waiting outside. What you see at the moment may not be what is happening outside, so you will just have to bear with us. I have been allowed to have one Doorkeeper as well. But if social distancing measures break down—no colleague wants to be criticised for that—I will briefly suspend the sitting until we sort things out.

[Ian Paisley (North Antrim) (DUP)]

On a point of order, Sir David. Is it in order for such major regulatory changes to be debated in a DL Committee? Already you have indicated that they cannot be properly debated because access is restricted for many colleagues who would like to have full participatory rights to be here to attend to these matters, to listen to every word that is said, and to be able to respond to every word that is said. Surely the appropriate place for this debate, if not the Floor of the House, must be a Northern Ireland Grand Committee, rather than a standard DL Committee. Should these proceedings not be brought to a halt until that Grand Committee is established?

[The Chair]

I thank the hon. Gentleman for notifying me of his intention to raise a point of order. Frankly, had he not done so, I would have been in the dark as to how we had arrived precisely where we are today, but I have sought advice, and this is the advice that I have been given. First, this is not a matter for the Chair. However, in order to be helpful, particularly to people in Northern Ireland who want to know why this is the position, I will explain that the scheduling of delegated legislation is a matter for the Government and the usual channels. Unless the Whip wants to say something, I really cannot comment further on that. The House made a decision on delegated legislation procedure, and Standing Order No. 118(5) states that I am to put the Question after two and a half hours of debate. Again, it is not within my authority to change that, and I trust that hon. Members will consider sharing out the time if we are to occupy proceedings for two and a half hours.

[Ian Paisley]

Further to that point of order, Sir David. Thank you for your leniency in allowing this further point of order. When this matter came before the House, it was given 17 minutes after it came back from the House of Lords, on a major piece of legislation that affects criminal law and law relating to everyone in Northern Ireland. Today we are being restricted to a DL Committee, so the maximum amount of time possible for debate today is less than two and a half hours, and of course the Government and the Opposition have to make their statements. Surely it is not appropriate for such a major issue of constitutional change in Northern Ireland to be shunted into a private room at the top of the stairs in Parliament, for a debate that is not even televised and so has minimal coverage, and these major laws are being changed. That cannot be in order for major constitutional change of this kind.

[The Chair]

I recognise how strongly the hon. Member feels on the issue, and those on the Government Front Bench will have heard what he has said, but I say again that this is really not a matter for the Chair. However, I am sure that the Government will reflect on the point that he has made—[Interruption.] Order. The right hon. Member for Lagan Valley needs to occupy a seat with a tick on it, which I am afraid will be down there.

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[The Minister of State, Northern Ireland Office (Mr Robin Walker)]

I beg to move

That the Committee has considered the Abortion (Northern Ireland) (No. 2) Regulations 2020 (S.I. 2020, No. 503).

I welcome your chairmanship, Sir David, and I thank the House staff for the work they have done to make this Committee Room safe for Members in the current difficult circumstances.

In proposing this debate, I recognise that this issue is a contentious and difficult one, and that there are strong opinions on all sides. I respect the deeply held views that Members will bring to this debate, and I am glad that the decision of the usual channels to allow a free vote on the issue will allow all Members to vote according to their conscience. However, I remind colleagues that in carrying out the instructions of this House of Commons from another vote last year, the Government are doing no more than meeting their legal duty.

We previously made the Abortion (Northern Ireland) Regulations 2020, which came into force on 31 March 2020, to set out the new legal framework for the provision of abortion services in Northern Ireland. Those regulations were also made under the affirmative procedure, and were required to be debated by 17 May 2020 to remain in force as law. However, the unprecedented situation created by covid-19 has impacted on parliamentary processes, and virtual voting systems were not yet fully implemented. We therefore took the decision to remake the regulations and give Parliament an additional 28 days to consider and scrutinise them properly, given the nature of this policy. This approach has ensured that the law on abortion in Northern Ireland continues to apply, with no risk of a gap or legal uncertainty, and that services in Northern Ireland can continue on the same legal basis as they have started operating within the new legal parameters.

[Ian Paisley]

The Minister has stressed that he is following a legal duty. If that is the case, I would like him to put on the record which treaty obligations he is in breach of if he does not pursue the implementation of a Committee on the Elimination of Discrimination against Women recommendation. I believe that we are in breach of no treaty, and that he is under no legal obligation to do what he is doing.

[Mr Walker]

The hon. Gentleman mentions treaties, but I did not; I mentioned a legal obligation, under which the House of Commons has placed us through section 9 of the Northern Ireland (Executive Formation etc) Act 2019. As he will know, as a result of an urgent question last week, we debated at some length the fact that we were bringing this forward, and I provided answers as to why we were doing so, rather than—as some in his party suggested—repealing section 9. I think this is a perfectly rational approach to delivering on the commitments that the House has placed on us under the 2019 Act.

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[Ian Paisley]

Is it not disingenuous to say that the regulations mirror what happens in GB? In GB, if what the Minister describes were to occur, a person would face imprisonment from up to five years to life. In the Republic of Ireland, that person would face up to 14 years’ imprisonment. In Northern Ireland, the very maximum that anyone would face for breaching this criminal law would be a fine of level 5, which is about £2,500. Is it not the case that the regulations do not mirror legislation, but liberalise that legislation?

[Mr Walker]

As I said, we set out in our response to the consultation the detail of how each of the decisions in this process was reached. We recognise that the situation ante this regulation in Northern Ireland was that the Northern Ireland (Executive Formation etc) Act 2019 had already removed the criminal sanctions, so we were under an obligation to create a framework, then reimpose criminal sanctions outside of that framework. That is the way in which we have addressed this.

We are clear that this is a situation in which CEDAW requires us to ensure that women and girls cannot be prosecuted for these regulations, and the regulations should not have—as, unfortunately, it was clear from some of the consultation responses, the criminal law previously did have in Northern Ireland—a chilling effect on availability, nor erect any barriers to access.

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[Mrs Maria Miller (Basingstoke) (Con)]

Thank you, Sir David; It is a great pleasure to serve under your chairmanship. I was reminded that it was just over a year ago that the Women and Equalities Committee published its report on abortion in Northern Ireland after colleagues and I spent an extensive period looking at the issue. I am really grateful for the opportunity to contribute to the debate.

The Government have introduced regulations that put into place the decisions of this Parliament, which were democratically agreed very recently. The regulations also right a wrong that long predates this Parliament and devolution, and has been sidestepped by all political parties. It is absolutely clear that the Government have a legal obligation to act, not only because of the recent decision of Parliament, but because of the decisions of the courts in recent years. While abortion is a devolved matter, that is clearly a fudge, because there are clear and specific obligations that the Northern Ireland Assembly must adhere to when it passes legislation—that it cannot be contrary to the UK’s international obligations or contrary to human rights law. It is a fudge, because this law predates that devolution, and it was not tackled at the time of devolution itself. However, devolution does not remove the UK Government’s responsibilities to ensure that all the law in the United Kingdom complies with international obligations, and it does not remove the Government’s obligation to ensure that all law is compliant with human rights law as well.

The United Nations committee on the elimination of discrimination against women found “grave violations” in relation to abortion law in Northern Ireland as it stood previously, particularly regarding fatal foetal abnormality, rape and incest, and “systematic violations” in the criminalisation of abortion and the restricted access to the ability to end pregnancies for many women, because of the need to travel outside Northern Ireland to secure it.

That is something that we should all be concerned about. We undertake international obligations so that we can comply with them. Those in Northern Ireland cannot simply have special pleading to sit outside that framework. What is more, at home, the UK Supreme Court identified very clearly that there was a breach of women’s article 8 rights in the law as it stood. The highest court in the land identified that the law breached human rights, and that is not something I believe any Government should ignore.

On top of that, if the Democratic Unionist party Members argue that this is something that is being foisted upon them, I would be interested to understand why, in October last year, the High Court in Belfast itself, in the heart of that community, found that the law as it stood was incompatible with article 8 rights.

[Ian Paisley]

The right hon. Lady should know that the European convention on human rights case that was brought by the ECHR was dismissed by the Supreme Court in Northern Ireland. It was not upheld. It was dismissed.

[Mrs Miller]

And the hon. Gentleman will know that some of the problems in that case related to the standing of the Northern Ireland Human Rights Commission, which I will come on to later, if I may. I hope that in raising that point, he was not seeking to try to mislead people who are following this debate. It is important that we stick to the facts of the debate, because—[Interruption.] If I may finish my point, in our visits as a Select Committee to Northern Ireland, the one thing that was overwhelming was how confused people were about the law.

[Ian Paisley]

I do not attempt to mislead anyone. It is stated in the documents that are before us. The fact is that, whether we like it or not, no matter the reasons or the deliberations of the Supreme Court of Northern Ireland, it dismissed the ECHR case because the plaintiff had no standing. End of story. That is a fact. That is what I said.

[Mrs Miller]

Again, I thank the hon. Gentleman, and we will not fall out over this, but I will gently remind him that it has been widely accepted that the reason the case was not accepted either in Northern Ireland or in the Supreme Court just over the road was because of a technical error in the drafting of the legislation when the standing of the Northern Ireland Human Rights Commission was drawn up.

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[Ian Paisley]

It is a pleasure to serve under your experienced chairmanship, Sir David.

This is an issue that is vastly controversial and provokes much thought; in some quarters it provokes concern, anger and frustration, and in other quarters it provokes much happiness. Those are the differences we are in. This divides parties, it divides families and it divides homes. I think everyone recognises the controversial and difficult nature of this.

However, hon. Members should be under no illusion whatsoever: today’s proceedings, when they are voted for—there is no doubt that they will be passed, given the Government’s majority—will not stop the confusion. The promise that this will end the confusion over regulations and all the rest of it in Northern Ireland is complete and total nonsense, as the Chairman made clear when he was addressing the issues to do with points of order. He said he was in the dark about how we got here.

If a Chairman as esteemed as you, Sir David, is in the dark about how the Government got themselves into a position where they are pushing through important regulations about criminality, social and constitutional change and the right to life of the pre-born in a two-and-a-half hour, crammed-in session, in an Upper Committee Corridor in this House, when we were only allowed 17 minutes on the Floor of the main Chamber last year in a previous Parliament—not this Parliament—to deal with the amendments that came from the House of Lords, if that is the fact of how we are going to deal with legislation that affects Northern Ireland in such a massive way, there is zero respect being paid not only to hon. Members from Northern Ireland, whatever their different opinions, but to women in Northern Ireland. This is not the way we should be legislating for anyone or any matter in that regard.

That is why I reiterate the points I made earlier and agree wholeheartedly with the speech of the right hon. Member for South Holland and The Deepings, who said that the way this has been carried out is an affront to the people of Northern Ireland. The hon. Members who are privileged to vote on this matter today, while the vast majority of Members from Northern Ireland are completely denied a vote on the issue, will have to ask themselves whether they are content that, by the end of these proceedings, they will have helped to pass the most permissive abortion regulations in the whole of the United Kingdom.

The abortion regulations that are being passed for Northern Ireland, as we have already heard in the to and fro, do not mirror what occurs in this part of the United Kingdom, but are completely different. Hon. Members have spoken in the past in this House about having to ensure that English laws represent English votes, and we have English votes for English laws procedures in place to do that. Northern Ireland Members have a right to ask, “Will this House make laws that reflect the character of Northern Ireland?”

The strength of this Union is that it is made up of very different component parts: peoples who have different views, peoples who are divided in many ways. The House should at least respect those differences. If it is good enough to have English votes for English laws, this House should recognise that the changes to be brought about should at least reflect the views of the people in Northern Ireland. As I have already indicated, the regulations are not a mirror image of the law in Great Britain. I hope that I am not being unfair to the Minister, who is an absolute gentleman and always deals with us courteously, but it is wrong to help Members through the Lobbies to vote for this legislation by suggesting to them that, “It mirrors what happens in the rest of the UK, so it is okay—we can push it on through and those Paddys will just have to accept it because it is the same as in the rest of the United Kingdom.”

The regulations do not mirror what happens in the rest of the United Kingdom in four key and distinct ways. The rules and regulations that would be introduced are much more permissive in terms of the gestation time limits that are allowed for abortion. They are more permissive on the issue of sex selection, which is outlawed in the United Kingdom and cannot now be protected in my part of the United Kingdom because no reason has to be given for a termination. They are more permissive in allowing abortion and termination on the basis of disability; and they are more permissive on the social reasons that have to be given, but not the medical reasons on the question of mental wellbeing.

The regulations do not mirror the law in the rest of the United Kingdom. People have talked about having two doctors’ opinions; zero doctors’ opinions are required in Northern Ireland by the regulations. Medical opinion can come from a midwife, a nurse, or anyone with a medical qualification, but the regulations do not specify that a doctor’s opinion is required in Northern Ireland. The 1967 abortion law was brought in on the basis that a doctor’s opinion was key to allowing the decision, and that has been completely done away with. On that key point, the suggestion that the regulations mirror GB is completely and totally erroneous.

Under the regulations, in Northern Ireland no reason has to be given for the termination to take place up to 12 weeks’ into gestation—no reason whatever. That is not the case in the rest of the United Kingdom, where reasons have to be given. In Northern Ireland, that opens the door to sex selection; it opens the door to other social reasons and to other issues that do not form any part of the regulations and practice in the rest of the United Kingdom. That goes well beyond even what CEDAW requires. CEDAW made it clear that there was a deficiency in the Northern Ireland regulations as they stood, because of rape, incest and fatal foetal abnormality issues. That no reason has to be given means that the laws in Northern Ireland would be at variance with and completely different from what happens in the rest of the United Kingdom. That does not mirror the United Kingdom.

On the highest sanction for illegal termination, the practitioner may decide that they are or are not satisfied with the reasons that are given, but are wrong in coming to that decision. If that person is eventually brought to court, the highest sanction that that person will face is a level 5 fine, meaning that, for something that is criminal law in the rest of the United Kingdom, a person can buy their way out of that problem with less than £5,000. That is the fact. The regulations do not mirror those here, where, if someone breaks that law, they face anywhere between five years to life in prison. That really makes a significant change in terms of how the regulations would be interpreted and applied in Northern Ireland. Even the Republic of Ireland, which has changed its abortion regulations, recognised that the punishment had to be by way of imprisonment of up to 14 years. Allowing people to buy their way out of that problem does not mirror what happens in the rest of the UK.



As I have already said, sex-selection terminations will be permitted, as it is not an offence to terminate for any reason. The regulations fail to mention sex selection. The Government have had ample opportunity to include sex selection and make it clear that it is not allowed, but they have been silent. As the Government have failed to mention it, how will the laws that outlaw sex selection in GB extend protections to unborn life in Northern Ireland? Maybe someone does not want a girl or a boy and then decided, “That’s a good enough reason.” It is a travesty, and it is wrong. It does not mirror what happens in the rest of the United Kingdom.

[Carla Lockhart]

My hon. Friend makes a valid point about sex selection. Does he agree that it is normally girls who are aborted? We talk so much about women’s health and women’s rights, yet it is girls who are aborted in the womb.

[Ian Paisley]

My hon. Friend makes the point exceedingly well, and we should listen to her words. This legislation does not protect the rights of women and girls, or of the unborn. It dismisses their rights—that is the fact.

The Attorney General for Northern Ireland has claimed that the Secretary of State has exceeded his authority. That is why the regulations, if and when they are passed, will unfortunately run into further controversy—no doubt they will be challenged. They will not bring an end to a difficult argument or suddenly solve it. We are in the process of dealing with difficult issues all the time, and the suggestion that the regulations end a difficult problem is just complete and total nonsense. If it was so easy, most hon. Members would welcome that. However, in claiming that the Secretary of State has exceeded his authority, the Attorney General for Northern Ireland made the following comments:

“It is doubtful that the legislation gives adequate ECHR protections to the rights of those opposed to these regulations, whether on conscience or philosophical grounds.”

He went on to say:

“It is inappropriate for the provision. In light of the political context that now exists in Northern Ireland, these provisions are actually lawful.”

Let me just complete the quotation. He goes on to say:

“It is disproportionate, contrary to article 9 of ECHR as well as article 8, to require those who undertake ancillary, administrative or managerial tasks to act contrary to their conscience.”

[Sir John Hayes]

My hon. Friend the Member for Bexhill and Battle suggested that the regulations might be made lawful by reference to a treaty. Will the hon. Gentleman let the Committee know, perhaps by way of a confirmation, that the regulations cite no treaty and relate to no treaty?

[Ian Paisley]

It is absolutely clear that we are not breaching any treaty; indeed, the Minister said so himself when I intervened on him earlier. No treaty is being contravened, and we are under no obligation whatever. We are doing something because it is politically expedient to do something. We are genuflecting to a committee that does not have the standing that the Minister and the Government give to it. That is why there will be many people who echo your words, Sir David—I hope I do not quote you incorrectly—by saying, “I’m confused about how we’ve got ourselves into this position.” If that is the case, these little committees all around Europe—

[The Chair]

Order. The Chairman is entirely impartial, and I am not sure the hon. Member should have interpreted my words in that way. I gently remind him that there is one more person waiting to speak, and I am sure the Committee wants a full response from the Minister.

[Ian Paisley]

I certainly would not want to put words into your mouth, Sir David. I think the words were “in the dark about how we got here.” I reiterate that people listening to the debate should take out of those comments whatever they wish.

The regulations discriminate against the disabled and against the sex of the child. How have they tested whether these regulations comply with the current laws against sex selection of the unborn? Do the Government accept that these regulations open the door to sex selection terminations? I believe they do. How will sex selection terminations remain illegal under these regulations given that the Government have been silent on that key matter?

The Government can repeal section 9. Since the election in December and the introduction of this law, there have been significant constitutional changes. We now have an Assembly operating in Northern Ireland that is opposed to these changes. Several hon. Members have cited the votes. Even members of the Alliance party voted against some of these regulations. One Parliament cannot tie the hands of another Parliament. Yet, it appears the Minister is quite willing to have his hands tied today because of what happened in a previous Parliament. He and the Government do not have to do that.

The Minister also said that he listened carefully to the people of Northern Ireland. Some 21,244 people responded to the consultation, 79% of whom stated their opposition to these regulations. The Minister did not listen to them. If that was the case, there would be a different outcome. Consultations are a joke. Let us be clear about this: this consultation was one of the biggest catastrophic jokes ever played on the people of Northern Ireland. Some 21,244 out of 1 million adults in Northern Ireland responded—one of the biggest responses ever—in a matter of weeks. The Government did not listen. Do not kid yourself. Do not play the game with us and say, “We listened to the people of Northern Ireland.” I’ll tell you what happened: the people of Northern Ireland were ignored in that consultation.

In the Assembly vote last week, 76 out of 90 Members, including members of the Alliance party and the Social Democratic and Labour Party, the sister party of the Labour party, voted not only with matters that my party brought forward but with other amendments that rejected these regulations—76 out of 90. They were ignored. They were thrown to the side.

Whenever medical professionals in Northern Ireland are asked to bring an opinion on whether a life should be terminated, they only have to act in what is called “good faith”. The grounds for termination do not require any diagnosis whatsoever, but just to act in good faith. That is different from what happens in the rest of the United Kingdom, and that alone will bring further controversy to this matter and more concern to the people around this House.

I believe this is an affront. I appeal to hon. Members to recognise that this should go to a Northern Ireland Grand Committee or the Floor of the House. Irrespective of what side of the argument they are on, this is not the way to make such significant changes to the laws in Northern Ireland. I appeal to hon. Members to think tonight before they vote.