Abortion (Northern Ireland) Regulations 2021

John Hayes Excerpts

Monday 26th April 2021 General Committees

[Alex Davies-Jones (Pontypridd) (Lab)]

Thank you, Mr Hosie. I thank the Minister for his engagement and constructive approach on this issue. Like him, I respect the dearly held convictions of all those who make their case here today. I appreciate the strongly held, long-standing views of all those who have spoken and will speak today. But it is important to remember how we have reached this point and why these regulations are so important for women and girls in Northern Ireland. According to the United Nations, as we have heard, the existing laws amounted to a grave and systematic violation of women’s rights in Northern Ireland. This Parliament had, and still has, a duty to act to uphold those rights.

The amendment tabled by my hon. Friend the Member for Walthamstow (Stella Creasy) to the Northern Ireland (Executive Formation etc) Act 2019 gave women in Northern Ireland a right to a safe, local abortion service. Parliament and MPs from political parties across the House made their will clear. No longer will we ask women to use unsafe, unregulated services or to make a heartbreaking journey across the Irish sea to seek an abortion in Britain. That is why, in the vote on it, the amendment tabled by my hon. Friend passed overwhelmingly. Nineteen months on from that vote, it is simply unacceptable that women and girls are still being denied safe, local services. This failure means that although the Act came into force more than a year ago, women are still being forced—in the middle of a pandemic—to make the heartbreaking journey across the Irish sea to seek an abortion.

It is worth reflecting on how an already cruel journey has been made even crueller in a pandemic. Many women and girls will have been forced to travel alone to unfamiliar cities that have been all but shut down, and denied a consoling hand or a smile. They have been forced to do so by political failure. Every single day that passes denies women the safe, local service that they are entitled to. At any time, that would be unacceptable; in a pandemic, it is morally unjustifiable.

[Sir John Hayes (South Holland and The Deepings) (Con)]

The hon. Lady has cited the hon. Member for Walthamstow (Stella Creasy) and what she said at the beginning of this process. At that time, she described the efforts that she was making as a mission to address “international obligations”. Are these international obligations or are they, as the explanatory notes say, not so?

[Alex Davies-Jones]

We have seen that this is an international obligation, and also a moral obligation, on us all. The CEDAW Act is clear, as is the UN, that we need to do the right thing to protect these women and girls.

I welcome the regulations before us today, which the Labour party wholeheartedly supports. They represent an important step forward in ending the cycle of inaction. However, I would be grateful if the Minister, in summing up, could provide some clarity on when exactly the powers would be used. He mentioned before the summer recess that this matter really cannot wait any longer. These women and girls need action now. Will the Government please give us an exact deadline for when the Secretary of State intends to use the powers in the regulations? He knows there is a court case in May relating to the human rights implications of the failure to commission these services. Will he act before then?

The Minister also mentioned that he has engaged extensively with Minister Swann, so will he provide an update on the discussions he has had with the Minister of Health and the Executive since the Government announced their intention to introduce fresh legislation? Has there been any indication of an intention to finally commission abortion services from the Executive? Will he also provide the Committee with an estimate of the number of women and girls already impacted by this inaction—those denied local services, those forced to use unregulated services and those who have been forced to travel to Britain?

As a Welsh Member of Parliament, I understand well the sensitivities around the devolution settlement, but I believe that the United Kingdom is at its best when we work together to uphold fundamental rights, and the obligation to do that lies with this Parliament and this UK Government. The Labour party has always been clear that where such rights are denied, there is a moral and legal duty for the Government to act. That is happening now in Northern Ireland. Quality healthcare and safe, local abortion services are a basic right. The time to act has long come and gone. For the sake of women and girls in Northern Ireland, it is vital that access to services is commissioned immediately.

--- Later in debate ---

[Miriam Cates]

I thank the hon. Lady for her intervention. I understand that the regulations are law as things stand, but I will urge the Government later in my contribution to repeal section 9, which I believe is the right and moral thing to do.

It would be one thing for this legislation to bring Northern Ireland’s abortion framework in line with that for Great Britain, but the measures go beyond Great Britain equivalents. They mandate an abortion regime that is quite unrestricted and, I believe, unsafe. Unlike in England and Wales, there will be no requirement for two doctors to certify, and abortion will be routinely available at GP’s surgeries rather than only in restricted places. Although I appreciate the Government’s requirement for safeguards, the regulations could permit sex-selective abortion by default, as they allow abortion for any reason until 12 weeks’ gestation.

[Sir John Hayes]

What my hon. Friend is saying is, frankly, shocking. She is saying that, far from the claim that we are bringing Northern Ireland into line with the rest of the United Kingdom, Northern Ireland’s laws on abortion will be entirely different from those that pertain to the rest of the United Kingdom—considerably more permissive, and therefore further out of line with local opinion even than the laws that prevail in England, Wales and Scotland.

[Miriam Cates]

I thank my right hon. Friend for his intervention. I appreciate that this is a very emotive issue, as other hon. Members have said. Many of us have different opinions—I fully accept hon. Members’ opinions—but I would like to make progress on the particular point of view that I bring to this issue.

The enforcement of the regulations could not only permit sex-selective abortion, but allow abortion up to birth for babies with disabilities—even those disabilities that do not prevent people from living fulfilling lives. I am particularly concerned that, without necessary safeguards, women in abusive relationships may be coerced into abortions. The regulations and their enforcement introduce new possibilities for sex and disability discrimination, and go far beyond what is legally necessary or even safe.

--- Later in debate ---

[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.

--- Later in debate ---

[Sir John Hayes]

It is a cause of regret when a confused Parliament does the wrong thing, but it is a cause of sorrow when a Government make that worse. The prevailing parliamentary confusion is based on a calumnia. To highlight the absurdity of where we stand, the Government now effectively acknowledge that today’s vote was secured on the basis of a misunderstanding, a misinterpretation, a mistaken grasp of what we had to do and must do. The argument of its protagonists on 9 July 2019 about section 9, to which these regulations pertain, was that it was vital to ensure that we met “our international obligations”. Indeed, after 9 July, even the Government suggested that that was the case. When confronted with the Stormont vote of 2 June 2020, the Secretary of State explicitly told the BBC that it made no difference because of our convention obligations.

However, the explanatory notes for today’s Committee make it crystal clear that none of that is the case. They say, of paragraphs 85 and 86 of the CEDAW report—I draw the Committee’s attention to these explanatory notes, for the purpose of clarity—that

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

That directly contradicts what the House was told by the hon. Member for Walthamstow (Stella Creasy) and others in July 2019. I have here her speech, in which she describes them as just that, “international obligations” that must be addressed.

The most striking thing about the regulations before us is how different they are from the last section 9 regulations—those of 2020. The 2020 regulations were concerned with abortion, but these regulations are much wider in scope, as my hon. Friend the Member for Penistone and Stocksbridge said. A clumsy, catch-all, calamitous approach is typical of the way Westminster has handled this topic. It still seems extraordinary to me that we should have greeted the restoration of Stormont in January 2020 with a vote only five months later to undermine devolution in respect of such a sensitive policy area.

We have heard from the Northern Irish representatives here, who after all speak directly for those who are affected by the regulations we are debating. Quite what the feeling is like in that place, a feeling expressed both in public consultation and in the votes in the now reconstituted Assembly—

[Charlotte Nichols (Warrington North) (Lab)]

rose—

--- Later in debate ---

[Sir John Hayes]

I will come back to those matters in a moment; first, I happily give way to the hon. Lady.

[Charlotte Nichols]

The point that the right hon. Gentleman made regarding people being directly affected by this is, I think, false. When I was a teenager and had my own abortion at the Liverpool Women’s Hospital, there were women and girls from Northern Ireland and the Republic of Ireland who had travelled to Liverpool for that service, and we have heard today about the number of people who are travelling over. It is not only people in Northern Ireland who are affected by this, because in areas such the one I represent, in GB, there will be people who are struggling to get on the waiting list for these services because people who should be able to access them in their own communities in Northern Ireland are having to travel here to get them. That is what we are seeking to address today.

[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—

[Mr Walker]

Will my right hon. Friend give way?

[Sir John Hayes]

Before I give way to the Minister, I pay personal tribute to him, because he has been incredibly courteous throughout; I have had many exchanges with him on the matter. I know that his personal views on these matters are not a million miles from mine, but I do not want to embarrass him by saying more than that. The truth is that he knows that with these regulations there is a possibility of us ending up with, rather than a circumstance whereby the availability of abortion in Northern Ireland is equivalent to that in the other parts of the United Kingdom, a circumstance, as my hon. Friend the Member for Penistone and Stocksbridge said, whereby abortion in Northern Ireland is offered more permissively than elsewhere. Perhaps he can correct me.

[Mr Walker]

I am very happy to correct my right hon. Friend on that point. I am certainly happy that we have had constructive engagement, and I hope that all Members on both sides of the House, and on both sides of the debate, will recognise the willingness to engage on these issues.

May I come back to my right hon. Friend’s suggestion that today’s regulations are wider in some way than the 2020 regulations? This is simply about the implementation of the 2020 regulations. Today’s regulations make no change whatever to them; they are simply about ensuring that what the House put into law in 2020 is delivered.

[Sir John Hayes]

The Minister says that, but it is clear from reading the regulations that, in certain circumstances, abortion can take place up to birth and that the 1967 Act’s insistence on two medical practitioners authorising abortion will not necessarily apply in Northern Ireland. I regard both those things as a more permissive application of the law than the one that pertains.

The 1967 Act may well be applied in theory more than in practice—I should not want to comment on that—but at the very least the risk of the more permissive regime that my hon. Friend the Member for Penistone and Stocksbridge described concerns the people of Northern Ireland, who fear that what is imposed on them might not only go against the expressed will of the people, but be altogether worse than that.

The hon. Member for Walthamstow made it perfectly clear that the essence of the argument used when the law was passed was that as there was no Assembly we had to act. She argued:

“I understand that, if it was not for the fact that we do not have an Assembly, this would absolutely not be the right way forward”.—[Official Report, 9 July 2019; Vol. 663, c. 183.]

That is what she said, with not a great deal of elegance; none the less, her point is made: it would absolutely “not be the right way forward.”

If it was “not the right way forward”, why on earth have we continued to pursue this path? When the Assembly was reformed, with a new Government, we had an opportunity to think again. It would not have been a huge step, given that the Assembly had the chance to vote on the matter. It has all the appearance of the Government dictating their will and of Parliament insisting that devolution counts only when the devolved Assemblies agree with people here. That is not something that you, Mr Hosie, I nor any democrat in this place could possibly sanction.

We must think too about the consequences for the Union and the continuing pertinence and relevance of devolution. If people in Northern Ireland come to believe what I have suggested—that their right to self-government is condoned by a Parliament that is so arrogant that it says that when they do not agree with the prevailing view here their rights can be torn away from them—how can they possibly continue to believe in the settlement or, indeed, even in the Union?

I was recently contacted by a clergyman from County Fermanagh, who decried the regulations as the final nail in the coffin of devolution. Indeed, an open letter was sent to the Prime Minister from 250 church leaders opposing today’s proposals. On at least four occasions, we have actively ignored the expressed will of Northern Ireland’s representatives on a matter of great importance to many in the Province. First, as has been noted, on 19 July 100% of Northern Ireland Members who take their seats voted against the process that resulted in section 9—a Northern Ireland-only provision on a devolved matter. Let me repeat that: a Northern Ireland-only provision on a devolved matter—a matter expressly devolved to Northern Ireland, yet it was imposed despite that opposition from Members who hold a specific mandate to represent the people there. At that moment we told the people of Northern Ireland that the voices of those elected to represent them would be ignored, and their history and deeply held views on this matter of conscience disregarded. By extension, we told the people of Northern Ireland that their opinion did not matter.

Secondly, we ignored the voice of the people of Northern Ireland in the consultation on the 2020 regulations, in which 79% of participants said they did not want the measure to proceed—seventy-nine per cent. is an even greater percentage than I managed to secure of the vote in South Holland and The Deepings—not much greater, but somewhat.

Thirdly, we ignored the voices of the people of Northern Ireland when we insisted on welcoming the restoration of the Northern Ireland Assembly while simultaneously ignoring its clear vote last year to reject the 2020 regulations. We now seek to forsake them again by forgoing further public consultation on the new regulations, at a time when the Assembly is working as intended, providing extensive and conscientious scrutiny of an imposed policy of the utmost sensitivity and profound local concern.

[Carla Lockhart]

I noted this with regard to my own speech but did not reference it. If the Committee was forcing a devolved issue on Scotland or Wales, would Members in this place agree to it? I think back to two examples. In 1957, Westminster voted to impose the flooding of the Tryweryn valley in Wales—

[Carla Lockhart]

Thank you, Mr Hosie. My point is that Welsh MPs voted against that, but the Government forced it through, which was recently described as “shameful”.

The same applies with the poll tax in Scotland, about which David Cameron apologised in 2006. One would hope that the lesson had been learned about not forcing things on the devolved Administrations, because that undermines and damages the Union. Therein lies my broad point.

[Sir John Hayes]

That is true, and the Committee that considered this issue before this Committee said that it was unprecedented in respect not only of Northern Ireland, but of any of the devolved nations. The decision that this Committee looks set to take—I will not put it more strongly than that—in supporting the regulations is so exceptional as to be noteworthy, as I described, and the hon. Lady has amplified.

It has been acknowledged that these issues understandably give rise to strong views, but on a matter as sensitive as this what is happening is particularly reprehensible. It would be reprehensible on a constitutional basis, regardless of the issue, but on a matter that causes such grave concern in Northern Ireland it is all the more so.

Today’s regulations are the continuation of a process that has fallen far short of the standards to which we as legislators should hold ourselves. I am not for one minute suggesting that people in Scotland and Wales think as the people of Northern Ireland do concerning abortion, but the precedents flowing from the way in which we are treating Northern Ireland with respect to the sustainability of the current devolution settlement across our kingdom are obvious.

Do not tell me that this is a matter of the sovereignty of Parliament, which we have heard suggested once or twice. Parliament has been sovereign since 1707. The fact that it can do certain things does not mean that it must do all things or should even do those things that it can. Parliament is sovereign by way of our constitution. By that constitution, it constrains itself by convention, and there are few more important conventions than upholding the Union and the Acts of Parliament that underpin it.

I recommend our Attorney General’s views on judicial activism and the creeping role of the Supreme Court in making public policy. If those views are not sufficiently persuasive, I recommend the views of the former Supreme Court judge, Lord Sumption, who has been clear that democratic legitimacy relies on the judiciary knowing what its constraints should be.

[Mrs Miller]

Surely my right hon. Friend is arguing against himself. If the Committee decides not to act today in introducing laws that improve the situation in Northern Ireland the Supreme Court will have no better action to take than effectively to put law in place of a vacuum. The current situation has been judged to be in convention with human rights, so we have no choice other than to act on that particular point.

[Sir John Hayes]

My right hon. Friend is right; the Government’s best course of action is to repeal the changes that were made when there was no devolution settlement. There is the prospect of further legal challenge, which I would certainly strongly support given all the things I said earlier about the 1998 Act establishing the devolution settlement; about the fact that this has been described again today by a Committee of this Parliament as being unprecedented; and about the basis on which the Assembly was reassembled and its legal underpinning. What we are doing today is highly questionable and I recommend that the Government think again.

The Minister says that Northern Ireland has some opportunity to interpret the regulations and come forward with its own settlement that stays within the law but does not go as far as some would want. That is true. Northern Ireland can come forward with a settlement, but these regulations are effectively a gun to the head of the people of Northern Ireland, saying, “Either you do what we want by your own decision or we will decide for you.” I hesitate to say anything critical of the Minister because I regard him highly, but it is a slightly deceptive argument to suggest that the Northern Irish can sort this out when a gun is being placed against their heads.

Not for nothing are many people in Northern Ireland very proud of the “One Hundred Thousand” report, confirmed by the Advertising Standards Authority as showing that probably 100,000 people are alive in Northern Ireland today who would not be had the Province embraced the Abortion Act 1967.

Moreover, when talking about the sovereignty of Parliament we must recall that a key aspect is that no Parliament can bind its successors. Section 9 was passed in a Bill the introduction of which defined its purpose in terms of the restoration of the Executive. That was in a previous Parliament and it could have been—it would and should have been—this Government’s course of action to say, “That was then and now is now.” A different Parliament and a different set of arrangements in Northern Ireland necessitates a different approach. That would not have been unreasonable given what I said about the need to maintain the integrity of devolution.

Rather than asking Parliament to pass these regulations, the Government should recognise the current reality and instead ask our new Parliament to welcome the restoration of the Assembly and to repeal section 9, as I said in response to my right hon. Friend the Member for Basingstoke. In making that point, I would say to the advocates of abortion that that would be a debate to have across the House, but more especially in Northern Ireland. If those who want abortion to be more widely available in Northern Ireland make their case and persuade their elected representatives to share that view, living in a democratic kingdom, the majority view will prevail.

It is important to say that the regulations are of course about abortion and its availability in the Province, but they are about something much more: how much we value devolved decision making, how much we respect the different opinions that prevail in different parts of this kingdom and how much we really believe that the sovereignty of this Parliament is enhanced when we are big enough to say that people in different parts of the kingdom can come to different conclusions from the majority view here.

Do we care so little about the distinct regional identities of our Union, unless we take exactly the same approach to abortion in Northern Ireland as in the rest of the United Kingdom, that we would extinguish people’s opinions and eliminate the majority view there? Are we to honour devolution only when those to whom we give power agree with us? Will the Government be content to build their future on past mistakes? Is this an Administration who listen, or do they dictate?

To misunderstand the salience of those questions, or the significance of the answers, would be among the worst political miscalculations of any Conservative Government since the Union began in 1707. As we sit under the gaze of Joseph Chamberlain—

[Karin Smyth]

Will the right hon. Gentleman give way?

[Sir John Hayes]

Before I come to my exciting conclusion, of course I give way.

[Karin Smyth]

The Act of Union 1707 did not apply to Ireland, only to Scotland.

[Sir John Hayes]

That is true, but I did not claim otherwise. I said this would be one of the biggest mistakes since then.

As we sit under the gaze of Joseph Chamberlain, the radical who in the end became allied to the Conservative Government, and who always put conviction above convenience, perhaps today members of the Committee should put principle and conviction first, not convenience, and think again about the regulations. I invite Conservative members of the Committee—and, I hope, members across it—to oppose the regulations because that would send a signal to Government to think again, to listen, to redraw their plans and to behave in a way that maintains our Union, respects devolution and shows that, rather than ploughing ahead regardless, the Government are sensitive to the wishes and interests of the people in every part of the United Kingdom.