Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Morrow Excerpts

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

[Lord Morrow (DUP)]

My Lords, those who spoke before me, albeit just two, have committed themselves to devolution in Northern Ireland. That is something that I and my party are strongly in favour of. Indeed, records will show that we are the only party that has not dallied with other ideas for Northern Ireland over the past 30 or 40 years. We are strong believers in devolution. We believe that devolution is the way forward. We believe that it serves Northern Ireland well and that the people of Northern Ireland should be making those decisions.

However, I have some concern when I hear some Members past and present speak who want to cherry pick things that London should be deciding and then maybe Northern Ireland politicians can decide other things if and when devolution returns. We will strongly oppose any attempt to cherry pick and decide what should or should not happen in Northern Ireland. However, if—and I know that the Minister has not said this—it is the opinion that direct rule should return, then let it return in full, not piecemeal, because that gives everybody the worst of both worlds.

We stand here today ready to go back into a Northern Ireland Assembly tomorrow, with no ifs, ands or buts, and no preconditions. It has to be said here, loud and clear, that it was Sinn Féin members who brought down the Northern Ireland Assembly—and I suspect that, if it were to be restored again, they would do the same all over again at their own timing. That is the way they work.

There are aspects of this Bill about which we have great concerns. I have great concerns about Clause 4. I do not want to get into technical, legal arguments that I know others will want to address: I will save my contribution on that for Committee. I simply want to point out that some others do not want to point out that abortion is a devolved matter. Legislation in Northern Ireland is the most up-to-date in any part of the United Kingdom, having been decided in 2016 on a cross-party vote. There was no petition of concern, but it was decided on a simple, straightforward majority that the law should remain as it is.

[Lord Adonis (Lab)]

My Lords, will the noble Lord explain to the House what the Parliament of the United Kingdom is supposed to do where a matter is devolved and there are no devolved institutions?

[Lord Morrow]

I simply point out again to the noble Lord that it is a devolved matter—but he consciously ignores that. I would respect him more if he would have more respect for what the people and the elected representatives of Northern Ireland have said quite recently. Furthermore, it is not going to help us to get power-sharing back. That surely should be the aim and the goal of this House: the restoration of devolution, as the Minister has already stated.

Polling of 1,013 adults in Northern Ireland conducted between 8 and 15 October showed that 64% of people do not think that Westminster should interfere in this issue but should leave it to the Northern Ireland Assembly. I agree with those 64%. The figures rise to 66% of women and 70% of 18 to 34 year-olds. The same polling also shows that 47% of people in Northern Ireland believe that intervention by Westminster would undermine devolution; only 30% disagree.

Furthermore, I understand that Amnesty has also done some polling on this same question, reaching different conclusions. However, I note, first, that it was conducted by an organisation that is not a member of the British Polling Council. Secondly, it did not release the polling tables for this question; and, thirdly—inexplicably—it left out the “don’t knows” and the “prefer not to says”. This inevitably distorts the outcome. Had the polling I cited been done, the proportion of Northern Ireland citizens saying that Westminster should not intervene would be more than 70%.

Of course, I accept that all polling has its limitations. The country vote on which we can depend was the election of the Northern Ireland Assembly, of which I was then a Member, by the women and men of Northern Ireland. This Assembly determined, by a simple majority vote and without reference to a petition of concern—I emphasise that—not to change abortion law in any way on 10 February 2016. Of course, if at some future point the Supreme Court issued a declaration of incompatibility with respect to any aspect of our law, the Northern Ireland Assembly would respond appropriately.

Northern Ireland (Executive Formation and Exercise of Functions) Bill

Lord Morrow Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

I close by asking this question. What is the message that your Lordships’ House will be sending to people born with a disability if we allow Clause 4 to stand part of the Bill? Surely it is this: “We believe that you would be better off dead; we believe it would be better if you had never been born, because of your disability”. So I ask my noble friend the Minister to take this opportunity to reassure me that the Government do not believe that I, as a Member of your Lordships’ House, would be better off dead and indeed that the Government do not believe that disabled human beings like me would be better off never having been born. I also ask my noble friend the Minister to reassure me that the Government will insist on protections, so that that message can never be given in practice by changes to the law and to practice in Northern Ireland.

[Lord Morrow (DUP)]

My Lords, I congratulate the noble Lord, Lord Shinkwin, on his excellent speech. I think he has captured it all here this evening, and I put on the record my appreciation of what he said.

I shall speak to Amendments 16, 10 and 11. I begin by responding to the amendments tabled by the noble Lord, Lord Adonis. I shall first touch briefly on the effect of each before reflecting on their immediate implication and then on their broader constitutional consequence. If the departments were advised not to enforce Sections 58 and 59 of the Offences Against the Person Act, it would allow abortion for absolutely any reason up until 28 weeks’ gestation. It would propel Northern Ireland from a place where it has the highest abortion legislation in the British Isles to having the loosest. In supporting this measure, parliamentarians from England, Scotland and Wales would be thrusting on Northern Ireland a far more liberal abortion law than they think appropriate for themselves. There is simply no justification whatever for this approach.

Setting aside the fact that no declaration of incompatibility was made by the Supreme Court in June—and that even if it had been, it would not have changed the law—the only criticism in the obiter comments was in relation to abortion in two very narrow contexts: first, when a baby is so severely disabled that there is a likelihood that it will die in the womb, will not survive birth or will die soon after; and, secondly, when a baby has the misfortune that the father was a rapist. This would not justify anything remotely resembling not enforcing Sections 58 and 59. Indeed, adopting such a course would be diametrically opposed to the statement by the court that Northern Ireland’s abortion law—Sections 58 and 59—is human rights compliant in prohibiting abortion on the basis of severe malformation.

The amendment is also deeply problematic because of the way in which it would expose people to the risk of prosecution. In the first instance, where these amendments would direct departments not to enforce the law, the law would remain in place. The Secretary of State would effectively be directing departments to make people aware that the law would not be enforced by them—which is likely to result in some people feeling more at liberty to break the law. This, however, would not stop private prosecutions. It is not right that we ask the Secretary of State to put officials in a position where they send out messages that are likely to result in some people breaking the law, thinking they will not end up in court when they will. This would be monstrous.

Amendment 11 is also deeply problematic. If the hope is that officials enforce Article 15 of the Matrimonial Causes (Northern Ireland) Order 1978, the amendment is misconceived. That piece of legislation relates to the conduct of judges, not departmental officials. If the hope is that officials will enforce Article 15 of the order by directing judges, that also will not work because it would contradict the principle that the judiciary is independent and not instructed by the Executive.

There is an even more profound difficulty with both amendments and their attempt to encourage the Executive to dispense with enforcement of the law. In examining them both, one cannot help but think of that very formative period in our history that, arguably, has done more than anything else to give us the constitutional system of government that we enjoy today. The Glorious Revolution was, in part, a response to the tendency of James II to dispense with the enforcement of laws—laws that remain on the statute book. His actions created a constitutional crisis that provoked the Glorious Revolution.

I know that the parallels are not exact. The noble Lord, Lord Adonis, is not a king: nor does he claim to be. He is raising this as a parliamentarian and suggesting that Parliament takes this step. However, I feel deeply uncomfortable about the idea of Parliament sanctioning one law to undermine another one that remains on the statute book. There is a real sense in which effectively he is asking Parliament for permission to overthrow the sovereignty of Parliament. This request is wrong-headed, and acceding to it would be destructive of our laws.

I support Amendment 16, in the name of the noble and learned Lord, Lord Mackay, and the noble Baroness, Lady O’Loan. It seems to me that Clause 4 is one of the most problematic provisions in the Bill. Although those who secured the inclusion of Clause 4 believe that Northern Ireland’s abortion law has been declared incompatible with human rights, no such declaration has been made. Even if a declaration of incompatibility had been made, it seems that the champions of Clause 4 have completely misunderstood what it means. When a declaration of incompatibility is made, the law is not changed and does not have to change. This point is made absolutely clear by Section 4(6) of the Human Rights Act 1998. The fact that, constitutionally, a declaration of incompatibility brings with it no imperative for legal change is set out very clearly by the noble and learned Baroness, Lady Hale, in paragraph 39 of her judgment in the recent Northern Ireland Supreme Court case back in June.

I now turn to examine some of the specific problems with the understanding of how the declaration of incompatibility applies in the context cited by Clause 4. The first specific example of incompatibility is set out in paragraph (a). This statement is problematic for two reasons. First, as I have already noted, no declaration of incompatibility was made; and secondly, again as already noted, the majority of the noble and learned Baroness’s commentary in the Supreme Court judgment also questioned the balance struck by the law in Northern Ireland in two very narrow contexts—foetal abnormality and rape. The commentary did not provide any justification for suggesting a general problem with Sections 58 and 59 of the Offences against the Person Act. Repealing Sections 58 and 59 would result not simply in adjusting the balance of rights in relation to those two specific contexts, but instead would permit abortion on demand for any reason up to 28 weeks’ gestation. The idea that the majority of her commentary suggests a problem with Sections 58 and 59 of the Offences against the Person Act per se is extraordinary. Subsection (1)(b) is equally confusing.

It is plain wrong to suggest that the Supreme Court has identified any human rights problem with Article 6(6)(e) of the Marriage (Northern Ireland) Order 2003. There is a challenge to that provision before the Northern Ireland Court of Appeal, the case having already been rejected by the High Court. To date, however, the definition of marriage has not been considered by the Supreme Court.

Having considered the immediate problems with both provisions, I now turn to the wider constitutional point. It cannot be right to require the Secretary of State to produce guidance for officials that has the potential to critique or undermine existing legislation. The only guidance that it would be proper for the Secretary of State to provide, mindful of Section 4(6) and Section 6 of the Human Rights Act, is guidance that upholds current primary legislation unless and until it changes. For the Secretary of State to do anything else would undermine the rule of law.

Mindful of this I have asked the Minister for an assurance that any guidance issued under Clause 4 will make plain, first, that even binding declarations of incompatibility do not have the effect of changing the law or of creating a legal imperative requiring the law to be changed in line with Section 4(6) of the Human Rights Act; and secondly, that no convention right can negate contrary to domestic legislative obligations in line with Section 6 of the Human Rights Act. Unless and until such a time as the law is changed, any guidance provided by the Secretary of State must require officials to uphold that law as it stands.

[Lord Cashman (Lab)]

My Lords, I speak in favour of the principles outlined by my noble friend Lord Adonis in Amendments 10 and 11, and against Amendment 16. I will be very brief indeed. Basically I am speaking in defence of Clause 4 because I believe that I have listened to a misrepresentation of that clause. For me it is as simple as this: the women of Northern Ireland and the lesbian, gay and bisexual people of Northern Ireland should be afforded exactly the same rights and opportunities as other citizens across the rest of the United Kingdom, and no one should face discrimination based on where they were born or where they now live. For those reasons, I support my noble friend’s amendments, but particularly Clause 4 as it stands.