Abortion (Northern Ireland) Regulations 2022

Lord Caine Excerpts

Tuesday 21st June 2022 Lords Chamber

Moved by

[Lord Caine]

That the Regulations laid before the House on 19 May be approved.

Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, in opening this debate I first acknowledge and express my respect for the deeply held views that many noble Lords hold and will continue to hold on this subject. For my part, since becoming a Member of your Lordships’ House in 2016, I have never taken a position on the moral rights or wrongs of abortion; indeed, I have not previously voted on the issue. Therefore, rather than reopening the ethical debate about abortion, which has been discussed on previous occasions including during the passage of the 2020 framework regulations, I wish to focus on the legal obligations on the Secretary of State for Northern Ireland and the Government and how these regulations will address them.

The origins of these regulations were the decision taken by both Houses of Parliament in 2019 to support an amendment to the Northern Ireland (Executive Formation) Bill brought forward by the honourable Member for Walthamstow, Stella Creasy, in the other place, in respect of access to abortion services in Northern Ireland. Noble Lords will recall that this took place during the period of nearly three years from 2017 to 2020 when Northern Ireland was without a functioning Executive or Assembly. The effect of her amendment, which subsequently became Section 9 of the Northern Ireland (Executive Formation etc) Act, was to place a clear statutory duty on the Government to ensure access to services that are compliant with the report in 2018 of the UN Committee on the Elimination of Discrimination Against Women—or CEDAW for short.

I remind noble Lords that the amendment was passed by a majority of 332 to 99 in the other place, and a vote to amend that amendment in this House was rejected by 138 votes to 39. The size of these majorities indicated the clear will of Parliament to address these issues and ensure access to services in Northern Ireland in line with those available in the rest of the United Kingdom. As a result, since April 2020, access to a limited range of abortion services has been available in Northern Ireland; the latest figures I have show that between 31 March 2020 and 31 January 2022, 2,794 such abortions took place.

I take this opportunity to put on record my thanks to the medical professionals who have ensured that women and girls have had some local access to abortion services in Northern Ireland up to this point, and the organisations that have supported this work. I do not underestimate the huge efforts that have been made, and I have deeply been impressed when meeting, as I have on a number of occasions, clinicians and organisations who have helped to sustain the limited services currently in place.

Despite their best efforts, however, these services still fall far short of what is required by law, with women and girls still unable to access high-quality abortion and post-abortion care locally in Northern Ireland in the same way as women in the rest of the UK. The reasons for this are very clear. Following New Decade, New Approach and the restoration of devolved government in Northern Ireland in January 2020, it was always the Government’s expectation and preference that the Executive, with the relevant legal powers, policy and operational expertise, would take forward the commissioning of abortion services and ensure that they were embedded in the health and social care system in Northern Ireland. Yet, despite having had every opportunity to do so, and extensive engagement by the UK Government to see how best we could support delivery, the Executive have failed to act.

As a result, women and girls in Northern Ireland continue to be placed in vulnerable situations, which we cannot allow to continue. Many of them are still forced to travel to Great Britain to access services, with 371 making the journey in 2020 despite the difficulties attached to travelling during that period. Figures released just today show that 161 made the journey in 2021. I know from my discussions with clinicians in Northern Ireland that the limited services on offer are stretched to breaking point. This is clearly an unacceptable state of affairs. Despite being given the time, space and encouragement by the Government to do so, the Executive have not ensured the provision of services required by Parliament in 2019.

In the spring of 2020, the Government introduced, and Parliament approved, a framework for the Department of Health in Northern Ireland to deliver services, yet services were not commissioned. In March 2021, the Government introduced, and Parliament approved, the Abortion (Northern Ireland) Regulations. These provided the Northern Ireland Secretary with a power to direct that action be taken where it is required to implement the recommendations in paragraphs 85 and 86 of the CEDAW report. In July 2021, the Northern Ireland Secretary did indeed direct the Department of Health to commission and ensure the full provision of abortion services by no later than 31 March 2022, yet services were still not commissioned.

It is approaching nearly three years since the executive formation Act was passed. Section 9 continues to place the Government under a duty to implement the CEDAW recommendations and ensure that women and girls have access to services. We now have no alternative but to take all necessary actions to ensure that this happens.

In his Statement, therefore, on 24 March this year, my right honourable friend the Secretary of State for Northern Ireland committed to return to Parliament and make regulations after the Northern Ireland Assembly election which took place on 5 May, if no progress was made towards the delivery of services. He has now made the regulations that are before your Lordships today and they were agreed in the other place last week, in order to make sure that the will of Parliament is respected and his legal duties upheld.

In response to arguments made that these regulations ignore the devolution settlement and make constitutional changes via secondary legislation, I would remind noble Lords that the devolution settlement does not absolve us of our statutory duty to uphold the rights of women and girls in this context. I therefore hope that noble Lords will support these regulations without amendment to the approval Motion.

The Government have not taken these decisions lightly. We remain fully committed to protecting the Belfast agreement in all its dimensions and to the institutions it establishes, including devolved government. In this instance, however, as I have just said, the devolution settlement does not absolve the Government of the clear statutory duties placed upon them by Parliament. This Government’s actions up to this point reinforce that position and our desire to work with the devolved institutions. Indeed, it was only once it became clear that this deadline would not be met that on 24 March, my right honourable friend made a commitment to return to Parliament and make regulations on abortion should they be necessary. As a result, these regulations were laid before this House on 19 May.

Turning briefly to what they contain, they remove the need for the Northern Ireland Executive Committee to approve services before they can be commissioned and funded by the Department of Health in Northern Ireland. The regulations do this by providing that directions under the Abortion (Northern Ireland) Regulations 2021, which require action to be taken to implement the recommendations of the CEDAW report, must be complied with irrespective of whether the matter has been discussed or agreed by the Northern Ireland Executive Committee. Further, they confer on the Secretary of State the power to do anything that a Northern Ireland Minister or department could do for the purpose of ensuring CEDAW compliance. For the purpose of determining what a Northern Ireland Minister or department could do, any need for Executive Committee approval will be disregarded.

The effect of this is to ensure that the Department of Health will have no further barriers to commission and fund services. Even at this stage, it is our clear preference that the Department of Health should drive forward the commissioning of abortion services without further delay and that, as a devolved matter, funding remains the responsibility of the Northern Ireland Executive. To that end, we continue to engage with the Minister of Health and his department, but this requires an absolute commitment by the department to provide services, or the Northern Ireland Secretary will use his powers in these regulations to commission services himself. To ensure that we have all the information required in those circumstances, a small team has been established in the Northern Ireland Office to work alongside the Department of Health to take this forward.

I recognise that this is a sensitive and personal issue for many people, and we have heard many differing views in this House on previous occasions, as well as from Members of the Northern Ireland Assembly, in relation to abortion services. Yet this sovereign United Kingdom Parliament has also made its views crystal clear and placed a binding statutory duty on the Secretary of State to ensure access to properly commissioned services. In their absence, caused by a refusal on the part of the Executive to take this forward, women are currently forced to choose to travel or to resort to unsafe and unregulated measures.

A number of the clinicians I have met over recent months, who are struggling to provide these services without proper support, tell me of the very difficult situations into which women are being forced by a lack of safe, local, high-quality healthcare services. This is despite the fact that the law is in place to ensure that safe, properly regulated services are provided. We have a statutory duty in Section 9 of the executive formation Act to change this situation and ensure that CEDAW-compliant services are available. That is what these regulations will finally provide in Northern Ireland, and I commend them to the House.

--- Later in debate ---

[Lord Caine (Con)]

My Lords, I thank everybody who has participated in the debate on these regulations, and I am grateful to the number of noble Lords who expressed support for what the Government are bringing forward. We have heard a wide range of strongly held personal views, and varied contributions on all aspects of the regulations. The noble Baroness, Lady Smith of Basildon, referred to a sense of déjà vu; I think it was the late Viscount Whitelaw, when he was Secretary of State for Northern Ireland, who referred after one meeting to “déjà vu all over again”. I take on board the comments of the noble Baroness regarding the Secondary Legislation Scrutiny Committee, and I can assure her that my officials have returned to the committee with a number of additional pieces of information, which I am assured have been included in the Third Report, so I do take that very seriously indeed.

I shall take the opportunity to address a number of the points raised by noble Lords in quite a lengthy debate, although I fear that if I respond to every single point raised, the Chief Whip might come to the House tomorrow to cancel the Summer Recess, but I will do my best.

A number of noble Lords, not least the noble Baroness, Lady O’Loan, whom I know has very deeply held views on these subjects, have made heartfelt contributions on the provision of abortion services and the framework established in 2020, and the framework regulations introduced then. I appreciate and understand the views that have been expressed but, as the noble Baroness, Lady O’Loan, pointed out, Parliament has already decided on a number of occasions that abortion services must be provided in Northern Ireland, and by large majorities. Noble Lords referred to the 2020 framework regulations. I would just remind noble Lords that those regulations were passed in your Lordships’ House by 332 votes to 29, which is some indication of the will of the House on those issues. The focus of the Government, and of these regulations, is to ensure that Parliament’s decision, expressed on a number of occasions, to give women and girls access to abortion services in Northern Ireland, is properly and fully implemented. Although abortion is an extremely emotive subject, as the noble Baronesses, Lady Deech, Lady Suttie, Lady Smith and Lady Barker, made very clear, we must not lose sight of the fact that it is women and girls in Northern Ireland who are at the heart of these issues, and it is unacceptable that there are women and girls in any part of our United Kingdom who cannot access basic healthcare and whose access to services has been delayed for far too long. I agree with my noble and learned friend Lord Clarke of Nottingham, whose very wise speech I strongly commend.

Parliament has decided that women and girls in Northern Ireland should be able to make individual, informed decisions, with proper patient care and the provision of information and support from medical professionals, based on their own health and wider circumstances, similar to women and girls living everywhere else in the United Kingdom. I think that is very much the right decision.

I should like to reiterate that, as was made clear by a number of noble Lords, so many women in Northern Ireland are placed in a difficult situation by the lack of regulated commissioned abortion services. I referred in my opening speech to the very large numbers who still have to travel to Great Britain to access care, or have to access unregulated services in Northern Ireland. With the greatest respect to the noble Baroness, Lady O’Loan, the position cannot simply be dismissed as work in progress; it cannot continue in this way, as the noble Baronesses, Lady Barker and Lady Smith of Basildon, made absolutely clear.

A major theme of a number of noble Lords this afternoon has been the constitutional position and the importance of respecting the devolution settlement in Northern Ireland. I agree entirely with that, although I cannot avoid sharing the suspicion of the noble Baroness, Lady Smith of Basildon, that some—not all, I hasten to add—seek to use the constitutional argument as a screen for the fact that they oppose abortion in all circumstances. It is interesting listening to people invoking the Belfast agreement, some of whom have never supported it at all and others who have recently pronounced it dead. I assure noble Lords that I, for one, am a strong supporter of the Belfast agreement and have been since 10 April 1998 when that historic agreement was made. I have repeatedly said in this House and elsewhere that I regard it as the bedrock of all the progress that has been made in Northern Ireland over the past 24 years. I do not wish to see anything that puts the agreement and its success in jeopardy.

The right reverend Prelate the Bishop of Blackburn suggested, I think, that we are only making these regulations now because the Assembly is not sitting, and we can. I think I explained in my opening remarks the circumstances in which these regulations originated. The Assembly was not sitting, we had an amendment to the Executive formation Bill and since then, we have been working alongside the Executive, the Department of Health and the Minister of Health for a number of years, but we have simply made no progress. Therefore, it is not a question of doing this because we think we can do it at this stage; we have really run out of road on this issue.

A number of noble Lords referred to the pick-and-mix nature of devolution. I certainly do not wish to pick and mix when it comes to the devolution settlement— I think my noble friend Lord Cormack used that phrase. The fact is that Government and the Secretary of State remain under a statutory duty to provide access to abortion services. It is wrong to suggest that he is not under a statutory duty—indeed, he is found to be in breach of his statutory duties in court. He is in no way absolved from the duties imposed upon him by the executive formation Act 2019 by the restoration of devolved government in 2020, as I said in my opening remarks. Lord Justice Colton, in his decision in the judicial review brought by the Society for the Protection of Unborn Children, said the following:

“The clear will of Parliament was that if there was no Executive Committee established by 21 October 2019 then the relevant duties and powers come into existence without extinguishment consequent on events thereafter.”


It is clear that the Secretary of State remains under the obligation and duties that Parliament imposed upon him nearly three years ago.

Notwithstanding this, we have been repeatedly clear about our desire—as the noble Baroness, Lady Smith of Basildon, reminded us—to continue to work with the Executive, the Department of Health and the Assembly to ensure that these regulations are implemented effectively and in a way that works for Northern Ireland, consistent with the obligations on the Secretary of State that I have outlined.

The noble Lord, Lord McCrea of Magherafelt and Cookstown, asked about the accountability of the Secretary of State. Of course, as a Minister of the Crown, the Secretary of State will continue to be accountable to this sovereign Parliament of the United Kingdom, as will I in your Lordships’ House.

The noble Lord, Lord Dodds of Duncairn—I normally refer to him as my noble friend, because he is—asked about the team of experts that has been set up in the Northern Ireland Office. They are civil servants from the Department of Health and Social Care who are experts in these matters and have been seconded to the Northern Ireland Office for these purposes.

Returning to the Northern Ireland Executive, more than two years after the framework regulations were put in place, it became abundantly clear that the Department of Health was not progressing this issue and that even if it did, it would be blocked once it reached the Executive Committee. Our clear preference is that the Executive should drive forward these services. To that end, the Secretary of State has formally requested confirmation from the Northern Ireland Minister of Health that they will do so. Therefore, even at this late stage and with these regulations, there is still an opportunity for the Minister and the Department of Health to take forward the commissioning of services without the intervention of the Secretary of State. We are not, however, prepared to allow the provision of services to be delayed indefinitely.

The noble Baroness, Lady Smith of Basildon, asked about a timeframe, as did the noble Baroness, Lady Suttie. I cannot give an exact timeframe, as I am sure they will appreciate, but we are not prepared to let this run for much longer. The Secretary of State would not be taking on these powers if he was not prepared to intervene fairly quickly, but at this late stage there is still an opportunity for the Department of Health to take this forward. We hope that will be the case but if not, the Government are prepared to act very quickly.

A number of noble Lords, including the noble Lord, Lord Morrow, and the noble Baroness, Lady Suttie, asked about funding. The regulations enable the Secretary of State to make provisions about funding, but I reiterate what has been said and in doing so disagree with the noble Lord, Lord Morrow. The funding settlement in last autumn’s spending review was the most generous in the history of devolution in Northern Ireland—indeed, across the whole United Kingdom. It would be a devolved matter, and it would be for the Northern Ireland Executive and the Department of Health to provide funding.

Parliament made a clear decision in 2019, passed by large majorities, to place a duty on the Government to provide access to CEDAW-compliant abortion services in Northern Ireland. In 2020, the Government delivered a set of regulations to enable that to happen. I reiterate that the regulations were passed by a very large majority in your Lordships’ House. That was over two years ago. At every stage we have sought to ensure that services were delivered through the proper devolved channels, but we have been unsuccessful in so doing. The powers these regulations grant provide a mechanism to unblock the political obstacles which have been placed in the way of their delivery, in order that the Government can satisfy obligations placed upon them in 2019 and uphold the will of this sovereign United Kingdom Parliament. I therefore urge noble Lords to reject the amendment in the name of the noble—

[Lord Dodds of Duncairn (DUP)]

I am very grateful to the Minister for giving way. On a point of factual accuracy, he and others have referred to 2,793 abortions in Northern Ireland, but the latest figure given by the Minister of Health in Northern Ireland is, as of 13 June, 3,459. Can the Minister undertake that, once he has set up this team of experts, it will give up-to-date advice to the NIO on the factual position? There is quite a big difference between the figure cited today on the record and the actual figure as given by the Minister of Health in Northern Ireland, who is the Minister responsible.

[Lord Caine (Con)]

Of course—I am very happy to give my noble friend that assurance.

In conclusion, I urge noble Lords to reject the amendment in the name of the noble Baroness, Lady O’Loan, should she seek to test the opinion of the House, and I urge your Lordships to support these regulations.

[Baroness O’Loan (CB)]

My Lords, I thank all those who have spoken in the debate today, particularly those who have spoken with me on my amendment to the Motion. Like the noble Baroness, Lady Barker, I should like to provide a clear exposition of some of the facts raised today. I cannot answer all the points made without keeping your Lordships for too long.

The regulations are loosely and badly drafted. They give rise to a large number of questions, which the Minister has not answered. The devolved Government have acted in accordance with the Northern Ireland (Executive Formation) Act and the 2020 regulations. People do not have to buy unsafe abortion pills; they get them from their doctor now. Abortion is now available. The noble Lord, Lord Dodds, said that there have been over 3,500 abortions. If there had been no specific commissioning of health services, these women could not have obtained abortions in Northern Ireland without paying for them. However, the fact that they were able to obtain their abortions under the health service means that they have been commissioned by the health services. Northern Ireland abortion services are provided and paid for by Northern Ireland.