Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Mackay of Clashfern Excerpts

2nd reading (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, my intention is to speak about Clause 4 only and the legal situation which is the background to it. I am taking no position on the substantive issues which underlie the clause, but it is quite clear that the intention of those who promoted the Motion put to approve Clause 4 as an amendment in the House of Commons, on a free vote, was to bring the law on abortion in Northern Ireland into line with modern law on the other side of the Irish Sea. The position is that abortion has been made a devolved subject. Therefore, the only statutory authority with authority to alter the statutes and statutory instruments is the Legislative Assembly of Northern Ireland and Ministers of that Assembly. There is no power whatsoever in the United Kingdom Parliament to interfere with that while it is devolved.

The noble Lords, Lord Steel of Aikwood and Lord Bruce of Bennachie, mentioned that there is a border in the Irish Sea on this point. That is certainly true. There are borders between here and Scotland on a number of things, including, for example, free prescriptions in the health service. It is part of devolution that the law on one side of the devolved border may be different from the law on the other side. I am a little surprised that exponents of devolution found that surprising, but that is the fact. That is part of the background of the law on this matter. The devolved issue is one, as I say, for the Northern Ireland Assembly and Ministers acting as Ministers of that Assembly.

Where that is the law, the question of the Human Rights Act is important. Your Lordships will recollect that the Human Rights Act does not modify existing law. There is a power in the courts to declare a provision of British law—this would apply in Northern Ireland as well—incompatible with the convention provision in the Human Rights Act. That decision of the courts does not affect the law unless and until it is acted on by Parliament. Perhaps the best example of that was the relationship between the Westminster Parliament and prisoners’ voting rights. That was declared incompatible with the convention rights by a Scottish court many years ago and the English court followed it, saying it was not necessary to do it twice because there was nothing wrong with the way that the Scots had done it—which is a compliment that I always like to hear. Anyway, that is what happened, and it remained the law of the United Kingdom for a long time. There have been some slight modifications recently but the idea that the Human Rights Act changes existing statutes is wrong. It is part of the provision of the Human Rights Act that it does not do so.

Therefore, the only authority to alter the existing law and bring it into conformity with the Human Rights Act is the legislature in question, if it is a statute that is in issue. Therefore, there is no question that the Secretary of State could by guidance alter the law in this matter, which is to a considerable extent defined by statutes which are in existence and in force in Northern Ireland. The Secretary of State is mandated to do this—she must do this—but if she were to make an order, it would be immediately set aside because it is quite clear from the statistics that have been given that not everybody in Northern Ireland is of exactly the same mind in connection with abortion. If it were so, it might pass without any challenge but in Northern Ireland that is extremely unlikely. Therefore, if the Secretary of State were to make an order trying to escape the existing statutes of Northern Ireland relevant to this subject, she would be immediately struck down as doing something which she is not entitled to do. The fact that she would have been asked to do that by Parliament is an extraordinary situation.

I know that those who moved this amendment in the House of Commons did so with that in mind—that this might be a way forward—but in this House we must take the view that that is not possible. I tabled an amendment for Committee—the last one, which will presumably come fairly late this evening—about that. I am proposing to move the amendment so that discussion will be possible but I do not intend to press it to a Division because abortion has always been—rightly, because it is a matter of conscience—on a free vote. This amendment was passed on a free vote in the House of Commons and therefore I do not intend to press it here. There may be others who want to do that and the fact I have tabled the amendment makes that possible. I just make it clear that I am not going to do that because it would be completely ineffective in producing the result that the movers of it wanted.