Northern Ireland (Executive Formation) Bill

Lord Judge Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Browne of Belmont]

I thank the noble Lord for his intervention, but I understand that that was on a very narrow case of fatal foetal abnormality. I will address that matter shortly, which should answer his question.

The chief commissioner of the Northern Ireland Human Rights Commission recognised that the recommendations were non-binding in oral evidence to the Women and Equalities Select Committee in the other place when it was reviewing the law in Northern Ireland. Professor Mark Hill QC wrote an opinion about the CEDAW report, in which he stated:

“The Committee does not have the capacity or standing to give a binding adjudication on the United Kingdom’s obligations under CEDAW or on the proper interpretation of CEDAW”,


made the point that the International Court of Justice had not interpreted CEDAW as providing a right to abortion, and said:

“The interpretative function under the CEDAW is reserved, not to the Committee, but to the International Court of Justice.”


If this is not enough to convince your Lordships that the authority being given to this Committee is flawed, I shall quote from a Supreme Court judgment —R (A and B) v Secretary of State for Health—in which Lord Justice Wilson said:

“The conventions and the covenant to which the UK is a party carefully stop short of calling upon national authorities to make abortion services generally available. Some of the committees go further down that path. But, as a matter of international law, the authority of their recommendations is slight”.


Here we come to the case that the noble Lord, Lord Bruce, referred to. The judgment in that case stated:

“If the Supreme Court rules in the case of Sarah Ewart that there is a right in relation to fatal fetal abnormality, then that would create a very strong case for a small but important change to the law. It would not, however, create anything resembling a general right to abortion”.


Indeed, the basis for thinking that the court might support a right in relation to fatal foetal abnormality is what was said in relation to a case last year, in which the plaintiff did not have standing, so no rule was made. The court also gave another indication, to the effect that there is no human right to abortion on the basis of disability generally—something permitted in Great Britain.

Secondly, the medium of human rights is normally expressed as a check on the majority expressed through constitutional due process. This is highly ironic, given that the only reason we are here is the complete disregard of constitutional due process manifested last week in the other place, where we saw: dispensing with scope; debate being permitted in relation to out-of-scope issues that should have been the subject of their own Bill, even though the Bill before the House was being fast-tracked; and the imposition of a change on the part of the UK with the smallest population, and thus the smallest number of MPs, by MPs from outside Northern Ireland

The ethic that the end justifies the means is the kind of thing that constitutional checks are supposed to guard against, not encourage. If the proponents of Clause 9 press their case on the basis of the end justifying the means, as at present, that will cast a great shadow over the integrity of their human rights pretensions. If we want to live in a functioning union, by all means let us talk about human rights, but do not use them wrongly to suggest that there is a general right to abortion when no such right exists, and do not use them to dispense with the respect for constitutional due process, the presence of which can facilitate a functioning union, whereas disrespect for it will bring about its demise.

[Lord Judge (CB)]

My Lords, I wonder whether I may be allowed two minutes to look at the provision that we are considering, which is Clause 3(6). What is proposed is,

“a review of the current legal framework on abortion in Northern Ireland with an analysis of how that … could be amended by Parliament … when there is no Executive”,

followed by these very important words, which I have not heard this afternoon,

“subject to a sunset clause to respect devolution”.

I read that to mean that whatever we may do, when there is an Assembly in Northern Ireland, it will be up to the Assembly to decide what the law should be in that country. It may revert to the law as it is now—but we hope that it will not.

[Baroness Boycott (CB)]

My Lords, I find this debate really shocking, and I support my noble friend Lady Deech and the other noble Baronesses. I have campaigned for women’s rights all my life, and the one word I have not heard tonight is “kindness”. I do not think any woman has ever wanted to have an abortion, and I am shocked by a lot of the attitudes coming through, which imply that women go for abortions in a willy-nilly, uncaring fashion. In fact, this is a terrible decision for any woman; it is not undertaken lightly, or without thought, worry and anxiety. Women have abortions because they do not feel that they can bring that child into this world and give it the care, love and family life it is due. This is something that has been absent from the debate, and I am shocked to stand here listening to men—as my noble friend Lady Deech says, it is men who are saying this. If it were men in those shoes, things would be different. They are entitled to stay overnight and then go off and leave a woman with the consequences. This is a human right; it is about kindness and decency. It is astonishing what is happening, 50 years on. I have been in this House for one year and two days, and I am shaking as I listen to all this again. We have had this argument. This is a human right and human decency, and we should not stand in the way of the women of Northern Ireland, who deserve it.