Abortion (Northern Ireland) Regulations 2022

Lord Robathan Excerpts

Tuesday 21st June 2022 Lords Chamber

[Lord Morrow (DUP)]

My Lords, I commend the noble Baroness, Lady O’Loan, on bringing this amendment to the Motion before your Lordships’ House today. In the event that she presses it, I assure her that my colleagues and I will support her.

I have set out my views on the 2020 abortion regulations and 2021 regulations before your Lordships’ House on earlier occasions. My opposition to the 2020 regulations is well known. The Secretary of State himself said in the other place last week that they

“go beyond what is in Great Britain”.—[Official Report, Commons, Delegated Legislation Committee, 16/6/22; col. 3.]

In April 2021, I said:

“The union has worked hitherto because Parliament has recognised that it cannot be used to impose a uniformity that undermines the key distinctiveness of the component parts.”


I said then that I thought that the 2020 and 2021 regulations

“do not provide grounds for overruling devolution or, more fundamentally, the understandings that make it possible to argue for the relationship that exists between the UK’s four component parts.”—[Official Report, 28/4/21; cols. 2269-70.]

I feel that even more strongly today.

It is extremely regrettable that we find ourselves talking about implementing the 2020 regulations, which were opposed by 79% of those who responded to the Government’s consultation in 2019 and which were not made with any involvement of the devolved Assembly and, as a result, any accountability to the people of Northern Ireland—citizens who have not been granted the right to decide their own abortion law through the representative process. My firm belief that this should be a matter dealt with by the Executive and the Assembly remains true.

Today we are discussing the 2022 regulations, which are already in place and give zero accountability to the people of Northern Ireland and fundamentally alter the Belfast agreement. Whether you agree with the 2020 regulations or not, the methods being used by the Government should make us all stop, pause and ask, “Is this the way we want our democracy operating?” For instance, would this be acceptable in a Scottish or Welsh context? I suspect not.

There is recognition by all three devolved Administrations that there are some matters that need to be dealt with centrally in a united manner; for instance, defence spending. The Northern Ireland Act 1998 recognised that there are times when it is appropriate for the Minister to direct the Executive, but these are narrowly defined in Section 26 as situations of national security or public safety, or where an action is needed under international law. We know that the Northern Ireland Office believes that the 2021 regulations do not fit any of these Section 26 criteria. It said that very explicitly last year in the Explanatory Memorandum, and it was for that reason that the Secretary of State gave himself new powers of direction.

The 1998 Act also acknowledged that matters that are significant to the Northern Ireland community are for the Northern Ireland Executive to decide. The law and policy on abortion fit this criteria, so, rightly, decisions in this area are for the Executive and not for the Minister of Health to make alone. Last year, the Minister took powers to make directions; this year, he has gone further in two respects: first, by saying he can make directions without any reference to the Executive, and secondly, by acting as if he were the Minister for Health and/or the Department of Health. The Secondary Legislation Scrutiny Committee said that these regulations give “extensive powers” to the Secretary of State, powers that have no accountability to the Northern Ireland electorate. This is a fundamental constitutional change proposed by regulation powers that the Minister confirmed last week he intends to exercise “relatively soon”.

These regulations set a precedent that we need to consider very carefully. They override the constitutional agreement that certain matters should be for the Executive and override the narrow criteria when the Secretary of State can act.

There are political questions to ask about why the Secretary of State is deciding to act now on this issue, when there was no action from the Government to make important decisions for Northern Ireland when the Assembly was suspended for three years. There are very practical questions to be asked and answered. The Secretary of State has made it clear that he intends to take these powers relatively soon, but when he does so how will his powers work alongside those of the Northern Ireland Minister of Health? Who will officials be responsible to and how will they take instructions from Westminster? What if there are conflicting instructions? How will the decisions the Minister says he is going to take affect the budget in the Northern Ireland Executive, and particularly other services that come under the Department of Health? What consequential budget decisions will need to be made by the Minister of Health because of the decisions made by the Secretary of State? How long will the powers last? Will these decisions be ongoing? Will the Minister of Health be constantly looking over his or her shoulder, wondering what decisions the Secretary of State may make in future years that could impact spending on policy?

In the other place, the Minister argued that questions about the budget were irrelevant because there had been a generous 2021 spending review settlement with more funds allocated to Northern Ireland than at any time since devolution. Really? I wish to draw your Lordships’ attention to the fact that over the period 2019-20 to 2024-25, the settlement will have been a real-terms increase of only 0.8%. I quote these figures from the 2021 spending review document. Since then, inflation has significantly increased, so it is right that the Northern Ireland Executive are cautious about spending, especially when that increase is compared to the 2.3% real-terms increase for Scotland and a 2.8% increase for Wales. Given this low increase, the Secretary of State may indeed find himself needing to use Regulation 5 to give grants or loans, and it is not clear how the Northern Ireland Executive will be able to fund any repayments. Nor is it clear how there will be transparency, or whether these decisions are good for the rest of the block grant or represent good value for money—a key Treasury principle. These are not theatrical questions. The Department of Health will be facing them very soon.

In summary, these regulations are counter to the devolution settlement. They set a precedent that should be a concern to the other devolved Administrations and will allow actions by the Secretary of State without any democratic accountability. Finally, this decision by government to push ahead with this issue further destabilises the devolution settlement.

[Lord Robathan (Con)]

My Lords, the moral dilemma of abortion is a fraught and complex one in which I do not intend to get too involved. In this country, it raises great passions; in the United States of America, it brings about conflict and leads to shootings, which I think we all regret. But it is the termination of life.

Personally, I believe that abortion is often necessary; it may be necessary for a great many reasons. However, I hope we would all regret that last year in the United Kingdom there were more than 200,000 abortions—I think that is right—which means that abortion has just become an extension of contraception, with all the dangers to mothers’ lives, apart from anything else, that go with it.

Although I may regret that, this debate is nothing to do with the morality of abortion. As we have just heard from several speakers, this is to do with the devolution of power to Northern Ireland. Some eight years ago, I worked in the Northern Ireland Office for a year. Devolution is very important. We know there are issues with it, but either we have devolved health to Northern Ireland or we have not. It seems to me that this is a matter of great principle. Notwithstanding any crusades in the House of Commons by one or two people, such as Stella Creasy, this is a matter that must be decided by the people of Northern Ireland. We should not be going there.

[Lord Alton of Liverpool (CB)]

My Lords, I fully support the amendment to the Motion introduced by my noble friend Lady O’Loan. I strongly endorse the remarks made by the noble Baroness, Lady Hoey, the right reverend Prelate the Bishop of Blackburn, and the noble Lords, Lord Robathan and Lord Morrow.

I say gently to my noble friend—for she is my noble friend—Lady Deech that, among the 30 articles of the 1948 Universal Declaration of Human Rights, there is no right to abortion. Article 3, on the other hand, guarantees the right to life itself. All the other rights are worthless without that paramount right to life.

It is fitting that this debate is taking place around an amendment that regrets this Motion because there is so much to regret in what Parliament is being asked to agree. We should register our profound regret for every life that will be lost because of this decision, at suborning the devolution settlement, and for measures that set aside ethical proprieties and are deeply flawed and frankly questionable, not least on the grounds of workability. These regulations are about more than just how abortion services are commissioned in Northern Ireland. They raise serious questions about devolution and highlight key constitutional challenges that go beyond abortion and should be of grave concern to your Lordships’ House, as we have heard. That is where I want to begin.

Today, the key question for your Lordships is this: should the constitution of this country be set aside on the basis of regulations alone, particularly when the regulations in question are vague and fail to set out how and when the power that they confer will be exercised?

I care about this deeply for a number of reasons. I led a delegation to see John Major when he was Prime Minister and urged him to make abortion a devolved matter—an argument that he accepted, as did Tony Blair. That delegation included leading figures from each of the constitutional parties then in the House of Commons, drawn from across the political divide. Indeed, for many years, I have been a parliamentary spokesman on Northern Ireland; I have come to respect and admire the people of Northern Ireland. I passionately believe that their voices deserve to be listened to, and that power-sharing through devolution holds the key to its future.

Each constituent part of the United Kingdom is permitted by virtue of devolution to take decisions that best meet the needs and political outlook of that part of this nation. The people of Northern Ireland have consistently elected to their Assembly people who take a different view concerning abortion than that expressed in other parts of the UK. Although attitudes and voting patterns in Northern Ireland may well change, the new Assembly has been elected only recently and this question is yet to be put to it. The clear constitutional imperative remains: devolved issues should be decided only by the devolved Administrations, who have been given the power to set policy and law for their area. It is arrogant in the extreme to overturn that principle, especially on an issue that is, for millions of people, not a marginal question but, as I have said, about the very right to life itself.

Regulation 2 permits the Secretary of State simply to bypass the Northern Ireland Executive and the Assembly. The Explanatory Memorandum states that

“a direction given under those Regulations must be complied with irrespective of whether any matter has been brought to the attention of, or discussed and agreed by, the Executive Committee of the Assembly.”

Even if a way forwards is agreed by the Northern Ireland Executive, or indeed the recently elected Assembly, the Secretary of State can simply make any direction he sees fit, even if it is in direct contravention of the decision made by the Executive or Assembly. Even if a majority of elected representatives in Northern Ireland disagree, they will be duty-bound to follow the decision of the Secretary of State. That cannot be right, and as a parliamentarian committed to the principle of devolution, I contest, as I have done in previous debates, this high-handed decision. Surely it would not be tolerated if it was in Scotland or Wales, and it should not be tolerated in Northern Ireland either. To set aside devolution and all it entails by statute would be bad enough, but to do so through regulation, regardless of whether it is technically legally permissible, is troubling indeed.