Abortion (Northern Ireland) Regulations 2021

Lord Hope of Craighead Excerpts

Wednesday 28th April 2021 Lords Chamber

[Lord Hope of Craighead (CB) [V]]

My Lords, this is an emotional issue, but I wish to express my own concern about the constitutional implications of these regulations.

To go back to the beginning, the legislation that introduced devolution to Northern Ireland followed a similar, although not identical, pattern to that adopted by the Scotland Act 1998. One of the issues that was much debated in the discussion about Scotland was what to do about abortion. In the end, it was decided that this should be a reserved matter, as it now is in Wales since 2006. The decision for Northern Ireland, on the other hand, was that it should be a transferred matter, and so within the legislative competence of the Northern Ireland Assembly, rather than that of the UK Parliament at Westminster. That was no accident. The Northern Ireland Act was the culmination of multiparty talks and the Belfast agreement of 10 April 1998. Those who are legislating here were content, without question, to accept the result of these talks. I cannot help thinking that if the Government were still respecting that result, as I believe they should, we would not be here today.

The only reason we are faced with this legislation is the duty placed on the Secretary of State by Section 9 of the Northern Ireland (Executive Formation etc) Act 2019. As we know, that Act was passed while the devolved institutions in Northern Ireland were suspended. As the noble and learned Lord, Lord Mackay of Clashfern, so correctly pointed out, the Long Title of that Act states that one of its purposes is

“to impose a duty on the Secretary of State … to make regulations changing the law of Northern Ireland on certain matters, subject to the formation of an Executive”.

I agree with the construction that the noble and learned Lord put upon those words. Northern Ireland now has a functioning Executive and the Assembly is now once again able to take these matters into its own hands and reform abortion law according to its own wishes—indeed, it has spoken, as the noble Lord, Lord Dodds, told us. So, we are not in the situation that the qualification in the Long Title contemplates. I agree with the conclusion that the noble and learned Lord has drawn and I suggest that we ought to have careful regard to it when considering the amendment of the noble Baroness, Lady O’Loan.

The Constitution Committee, of which I am a member, has raised a question as to the prospect and desirability of different laws on abortion operating in Northern Ireland. This is a very confusing and disturbing matter, because we are moving into very deep waters. I would be grateful if the Minister would respond as fully as he can to the question that the Constitution Committee has raised. One of the remarkable things about the Northern Ireland settlement is a unique provision in the devolution legislation which enables the Assembly to modify any provision made in or under an Act of the United Kingdom Parliament,

“in so far as it is part of the law of Northern Ireland”.

But it can do this only if it is within its legislative competence, having regard, among other things, to the convention rights. So, it is a complicated matter and I would be grateful for the Minister’s further observations on that awkward situation.