Northern Ireland (Executive Formation etc) Act 2019 Section 3(5)

Stella Creasy Excerpts

Wednesday 16th October 2019 Commons Chamber

[Mr Walker]

I think we can all welcome the fact that the Bill is being introduced and is moving forward. I am afraid that I do not have the full details of the timetable, but I will seek to consult colleagues in the Lords and, perhaps, write to the hon. Lady. I join her in paying tribute to the victims groups, about whom we have heard a great deal from Members throughout the House, and who have waited so patiently for redress and worked so constructively with those involved in the Hart inquiry, and with officials and politicians.

Let me now turn to the talks. The House should be in no doubt of the strength of our resolve to get Stormont back up and running. In the weeks since the first report was published, the Secretary of State has intensified his work with the Northern Ireland parties—particularly the two largest parties—to seek solutions to the remaining issues, which include rights, language and identity. He has continued to work closely with the Tánaiste, in accordance with the three-stranded approach, and the British and Irish Governments share the view that there remains an opportunity in the coming days to reach an accommodation. Indeed, the Secretary of State is not here in person to open the debate because he has decided to stay on in Northern Ireland tonight to continue to engage with the parties this evening.

The people of Northern Ireland have gone for more than 1,000 days without an Executive and Assembly, and I, along with colleagues throughout the House, do not want that stagnation to continue. Northern Ireland needs effective decision making, and its people deserve progress on key issues, including many that have been raised in the published reports.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

The last time there were official cross-party talks was in July. We are now literally five days away from the Bill becoming an Act, and the provisions on abortion and same-sex marriage being extended as equal rights to Northern Ireland. What could it possibly be in the next couple of days that has suddenly renewed the Government’s vigour and their desire to reopen the talks, and to offer the idea that the abortion law for the people in Northern Ireland could be suspended when there is a Brexit deal to be done? Will the Minister update us on what has happened to change things now, of all times?

[Mr Walker]

I do not accept that characterisation. The Government have always been clear that we want to see devolved Government restored and that this deadline set out in the Act of the 21st would be when legislation would have to be brought forward if the Executive were not in place. Of course it is right that we are engaging with the parties—as I suspect any Government of any colour would be doing—to try to restore the Executive and Assembly, and we should continue to do that right up to the deadline.

As the hon. Lady notes, the current period for Executive formation expires on Monday, 21 October, and in the event that the institutions have not been restored, we will be required to extend the Act by statutory instrument. On this, I want to be absolutely clear with the political parties in Northern Ireland: this would not be a good outcome. Northern Ireland needs political decision making. The Assembly has had over two and a half years to reach a compromise and get Stormont back up and running, and the people of Northern Ireland are sick and tired of continued delay.

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[Mr Walker]

Broadly, yes—I do accept that, but I also accept that the legislation allowed for this interim period so that the right guidance could be put into place to ensure that when services become available they are operating under the right framework.

It is expected that access to abortion services will not be routinely available in Northern Ireland until the new legal framework is in place after March 2020. The guidance notes that, if healthcare professionals choose to offer an abortion service to women during the interim period within the bounds of the relevant law, they should do so in line with their professional competence and guidance from their professional body. The guidance also notes the state of play relating to conscientious objection and what to do in cases in which patients have purchased abortion pills online. We are continuing to work at pace to be ready to continue to take forward all the necessary work to be able to implement new regulations by 31 March 2020 if there is no restored Executive by the deadline. Make no mistake: we will change the law on these issues if there is no Executive within the deadline.

My Department is therefore preparing to launch a consultation on changes to the law, on access to abortion services, and on the scheme for a victims payment once the 21 October deadline passes.

[Stella Creasy]

The Act is exceptionally clear that it is solely the Executive being reformed, not the Assembly, that would be the trigger. It is also very clear that this is not dependent on the Assembly being in place post 22 October. For the avoidance of doubt, will the Minister tell the House whether the legislation that we passed in July this year will be amended by this Government if the Assembly is up and running after 22 October to give the Assembly the power to set these laws, or is he going to do what the Act, which this House passed overwhelmingly, asks him to do by March 2020?

[Mr Walker]

I am slightly confused by the hon. Lady’s intervention, because I think I have been absolutely clear that we will do what the law requires in this respect. We are not intending to amend it. What I am saying, though, is that, if the Executive and Assembly were to be up and running before the deadline, those requirements would not apply. The requirements very specifically, as she said, require the Executive to be in place.

[Stella Creasy]

For the avoidance of doubt, the Act makes no mention of the role of the Assembly if it is reconstituted once the 21 October trigger passes. Will the Minister tell the House that he intends to amend the legislation that we passed in this House about the provision of regulation by March 2020 if the Assembly is back in place? Surely the Assembly Members need to know whether the Government are expecting them to step in if the Assembly is reconstituted, because that is not what the Act says.

[Mr Walker]

The Act is clear on the requirements on the Government to act in the event that the Executive have not been reconstituted.

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[Stella Creasy (Walthamstow) (Lab/Co-op)]

I do not think there is a difference across the House in wanting to see the Stormont Assembly and Executive up and running. We all agree that it is important that the people of Northern Ireland have that Government restored. We also think, however, that the women of Northern Ireland deserve some honesty about what will happen to their human rights, which, in this House in July, we pledged to uphold. Tonight, the Minister has shown what most of us feared might happen—the slow unpicking of the commitment the House made to ensure that we treat all UK citizens equally when it comes to their ability to make choices about their own bodies.

For the avoidance of doubt, let us set out some clear principles. It is written in the Northern Ireland (Executive Formation etc) Act 2019 that this is about the Executive reforming, not the Assembly. Let us be specific: it is about having a First Minister, a Deputy First Minister and 10 Ministers with departmental responsibilities by the end of next Monday—nothing less, nothing more. That is not the preserve of the Government, or one single party, to deliver. It is about power sharing. There is absolutely nothing in the Act about mandating the Assembly to take on the legislation post 22 October. Indeed, it would be bizarre, given hon. Members’ concerns, to uphold the role of the Assembly and then direct it to take over the legislation.

There is plenty in the Act about the importance of the role of the Secretary of State, and I quote section 9(7):

“The Secretary of State must carry out the duties imposed by this section expeditiously, recognising the importance of doing so for protecting the human rights of women in Northern Ireland.”

What does that mean in practice? What have we seen over the past couple of days, with this sudden flurry of interest in trying to get the Executive up and running?

I am disappointed that the Secretary of State is not here, because I had hoped that he would account for his words on Twitter—[Interruption.] I had hoped that he would account for his words because he said something very powerful and threatening. He said that he understood that Church leaders were worried about abortion reform and that he would be

“working all week…to ensure that I do everything I can to encourage political leaders to get back into an Executive and ensure that they can shape the abortion laws for Northern Ireland.”

People might think that that is a worthy sentiment, but given that if the Assembly is reconstituted by Monday, the regulations on same-sex marriage will also fall, it is telling that he highlighted only abortion. Only women’s rights have become a bargaining chip in the Brexit process.

The Minister tells us that he has been talking to women’s groups, but he cannot name a single one. We cannot find a single women’s group in Northern Ireland that has had a meeting with the Secretary of State, that has been consulted or that the Government have talked to. It is very clear, however, that they are listening to the Churches.

[Martin Whitfield (East Lothian) (Lab)]

Would it be possible, in the time remaining, for those who advise the Minister to find at least one person whom they have discussed it with, other than the Churches, given that he indicated that many discussions had taken place?

[Stella Creasy]

I hope they can, because then the Minister could answer the words of Lyra McKee’s partner, who said:

“It seems that pleas from people who have seen their loved ones murdered mean a lot less than the demand of church men desperate to repress women.”

Lyra McKee’s family are deeply concerned by the way in which her memory and legacy have been used in the debate.

The Minister has to show us, not just by next Monday, but until March next year, that he is prepared to uphold what is in the legislation about acting expeditiously to protect the human rights of women in Northern Ireland. That is not the same as giving powers to the Assembly to deal with it. That is not what is in the Act. He needs to be honest that that is how the Government now intend to deal with it and get the House’s approval for that.

The consequences of not doing that are very real for women in Northern Ireland. The Minister knows that, right now, we cannot tell women in Northern Ireland who might need an abortion how they will access that service next Tuesday. He and I have talked about the issue of pills. We are all worried about women accessing products online that may not be safe. In 1967, when the House legislated to exempt women in England and Wales from prosecution, we did not say, “Look, it’s okay, you can continue to have a backstreet abortion, but at least you will be able to go to a doctor.” We recognised the importance of making sure that people could access safe procedures. Yet it is very clear that that will not be the case for women in Northern Ireland from next week.

Many hon. Members will have heard the brave words of Sarah Ewart, who had to take our country to the High Court because her rights were violated. She had a fatal foetal abnormality and she was not able to seek support in her home nation of Northern Ireland to deal with that. Indeed, when faced with that horrific prognosis, the response that she got from doctors was, “I’m not going to get prosecuted to help you.”

Hand on heart, none of us can say that from next week that situation will change for women in Northern Ireland. Indeed, with hand on heart, many of us have to look Sarah Ewart in the eye, because the Supreme Court has said that it will wait to see what happens with this legislation before acting to see whether the Government have to uphold the human rights of women in Northern Ireland. What a shameful situation that we are still quibbling over treating our fellow UK citizens with dignity and respect, in the way that we would expect for our constituents here in England and Wales.

There is nothing in the legislation that will change the time limits and nothing that will change the existing medical regulations that would allow abortion to take place. It simply removes the criminal element and sees this as a medical matter. It sees women as able to make choices over their own bodies, just as men would wish to do.

[Kate Hoey (Vauxhall) (Lab)]

I understand my hon. Friend’s passion about people in Northern Ireland being treated equally. This is not to divert us from that important issue, but does she not think, as a Labour Member, that our party should allow people in Northern Ireland, which is part of the United Kingdom, to vote for Labour candidates? Does she not think that that is a democratic principle? Yes, this issue is hugely important, but it is about a principle of democracy.

[Stella Creasy]

What I do know is that you, Mr Deputy Speaker, would not forgive me for straying into what is essentially a family matter for the Labour movement. The Labour movement has stood up for human rights around the world. We stand up for the human rights of the people of Northern Ireland to love who they love and to marry who they want, yet when it comes to the human rights of women in Northern Ireland to have control over their bodies, suddenly this place is stuttering.

The Government have issued guidance on this legislation, but there is no public information campaign. What do we say to people in Northern Ireland next week? Can they go to a doctor and ask for misoprostol and have an early-term abortion—yes or no? It will not be illegal any more, so physicians could certainly prescribe the pill, but the Government have not done the work to tell people what the legislation will be. We will be in an interim period. That is exactly why the legislation was drafted not just with decriminalisation in mind, but to keep the regulatory period as short as possible to avoid this confusion.

What the Minister has done tonight, by waving in front of one party in this place the opportunity to kill this measure through providing the role of the Assembly, is to create further confusion about how women in Northern Ireland will access their basic rights. We know that he is going to do that, because he has talked about having a public consultation on how to do abortion, as though it is something that we all have an ability to make happen. People on Twitter think that I have the ability to do that, but I want to be very clear that I have never made an abortion happen.

The point here is that we do not ask for public consultation on other healthcare issues. At no point do we put the concept of doing a vasectomy up to people in the community, yet somehow—

[Sir Jeffrey M. Donaldson (Lagan Valley) (DUP)]

Will the hon. Lady give way?

[Stella Creasy]

I happily give way; I was going to finish.

[Sir Jeffrey M. Donaldson]

The reason we have to have a public consultation in Northern Ireland is that this Parliament passed into law section 75 of the Northern Ireland Act 1998—part of the Good Friday/Belfast agreement —which says that on such issues that affect certain groups, there must be a public consultation. That is a statutory responsibility on the part of the Government.

[Stella Creasy]

I have a lot of respect for the right hon. Gentleman, but on his point about a section 75 consultation, he will find that that is not the case. The whole point about how the 2019 legislation was drafted was that it was about human rights—it was about not devolving human rights. Absolutely, there could be a consultation, but nobody can tell me what non-medical questions we should be asking people who are not medical professionals about abortion. That is the challenge we face.

Women in Northern Ireland deserve honesty. From next week, if the Executive are not reconstituted, will those women be able to get an abortion and, if so, how? That is what the 2019 Act pledged—it pledged to treat them as equal citizens, just as we pledged to treat our fellow citizens who want to marry somebody of the same sex equally. Yet somehow one of those is being disposed of in favour of political gain. At least if the Government were honest about that, women in Northern Ireland could prepare themselves.

I fear what will happen next Tuesday, because we will enter a period in which the Government will try every single trick to undermine this very basic piece of legislation that this House passed. I tell the Minister now, just as I tell the protestors in my constituency: they will not stop us standing up and fighting for the rights of women in Northern Ireland to be treated equally and fairly and to ensure that what this place promised overwhelmingly in July that it would do happens by March 2020. The Government set that deadline, not us. Now we can see why they wanted the delay, but I tell the Minister that it is not in the legislation, it will be contested, and he needs to be honest, if he is going to seek new legislation, that that is what he will do.

Surely, those women who have waited—who have watched rape victims not be able to get abortions, watched women with fatal foetal abnormality suffer and seen parents prosecuted for trying to protect their children in abusive relationships—at least deserve that from the Minister: some honesty.

[Several hon. Members rose—]

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[Jim Shannon]

I thank my hon. Friend for her intervention. She has made the case clearly, and I agree with her.

[Stella Creasy]

Will the hon. Gentleman give way?

[Jim Shannon]

The hon. Lady has had her chance.

It would have been one thing for this House to vote to impose abortion on Northern Ireland in the face of every Member of Parliament representing Northern Ireland voting against the measure, in the knowledge that the most recent abortion vote of any UK legislature on primary legislation was in the Northern Ireland Assembly in February 2016, when the people who should be making the decision voted not to change our law in any way. A national opinion poll last week showed that the majority of people in Northern Ireland do not want to see the liberalisation of abortion planned by Members of this House.

When I think about what will be imposed on my part of the United Kingdom from Tuesday, I am left utterly speechless. Between 22 October 2019 and 31 March 2020, the only law on this that will be in place in Northern Ireland will be the Criminal Justice Act (Northern Ireland) 1945, which is not engaged until the point at which a child is capable of being born alive. That effectively means that we would have a legal void in protections for the unborn until at least 21 weeks of gestation, and potentially up to 28 weeks’ gestation. It means that from Tuesday some unborn animals subject to research will have more statutory protection in Northern Ireland, thanks to the Animals (Scientific Procedures) Act 1986, than some unborn human beings. It is absolutely unbelievable that anyone would do this, and the Members responsible need to look at themselves very seriously. It is deeply troubling.

It also means that from Tuesday, quite unlike any other part of the United Kingdom, we will effectively have unregulated abortions, with all the attendant risks for women. The Government say in this report that they intend that the NHS will not significantly change the way it provides abortions until 31 March, but I find the emphasis that they place on this deeply disturbing. The Minister knows that; I spoke to him this afternoon about it.

Abortions need not come from the NHS. From Tuesday, it will be legal for private clinics to provide abortions in Northern Ireland. The Independent Health Care Regulations (Northern Ireland) 2005 place a statutory duty on the Regulation and Quality Improvement Authority to register and inspect independent hospitals and clinics that meet the stated requirement for registration, but those regulations are wholly inadequate. We must have legislation in place that protects people.

Currently, there are two conditions that would require an independent clinic to be registered with the RQIA: the first is that an independent clinic intends to carry out a prescribed technique or make use of prescribed technology; and the second that a medical practitioner working in the clinic is not otherwise engaged in providing services to health and social care in Northern Ireland. Abortion provision is not a prescribed technique or technology under the regulations, which means that only independent clinics that do not employ any doctors who also work for the NHS will be subject to this regulation. Again, a minefield of regulation.

Moreover, and this is of huge concern, this regulation will be quite unlike that pertaining to abortion clinics in England, where the activity of providing abortions is subject to abortion-specific regulation and the premises are subject to abortion-specific regulation and a series of abortion-specific required operating standard procedures. It is about the technical parts of the procedure. The Minister knows this; we talked about it this afternoon. None of those abortion-specific regulations will apply in Northern Ireland on Tuesday for at least five months.

Another important safeguard that currently applies in England but will not apply in Northern Ireland on Tuesday is regulation 20 of the Care Quality Commission (Registration) Regulations 2009, which deals with requirements relating to the termination of pregnancies. What is most shocking, however, is that the change in law means that from Tuesday there will be nothing to prevent someone without any medical qualifications at all from offering abortion services. With respect, I say that Government will thus cross a line that has never been crossed before: Government will potentially make backstreet abortions legal. This should not be about going back to the pre-1967 days, but it will be on Tuesday unless the Assembly returns by Monday. That recall is in process and hopefully can be achieved; if it can, this can be stopped, and the responsibility will lie with the Northern Ireland Assembly’s elected representatives, as it should.

Regardless of what one thinks about abortion, we cannot countenance this outrageous legislative framework for a day, let alone five months. In that context, I have a simple question for the Government and those in the Northern Ireland Office specifically: what were Government thinking when they agreed to the text of section 9 of the 2019 Act in the other place? They could have stood up for the women of Northern Ireland, as I am doing tonight, for the unborn and for babies alive in the womb, and pointed out that the safety implications of what section 9 proposed were just as inappropriate for the women of Northern Ireland as they would be for the women of England. They did not. This has to count as one of the most serious failures of governance that I have ever encountered. I say this honestly and respectfully to the Minister and to Government.

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[Gavin Robinson]

I could not agree more. It was a great shame that back in July that disincentive was provided to the restoration of the Assembly, and we are seeing the outworkings of that.

Is it not bizarre that those who propose the changes in this legislation and who framed it in a way that allowed the Assembly to return failed to recognise that disincentive? Even this evening, when it is suggested that these devolved matters should be considered by a devolved Assembly, should it be restored, they are outraged. They are outraged by devolution, outraged by local democracy and outraged that people who are elected to represent their constituents in Northern Ireland, from whatever perspective, should have the ability to legislate on the issues that matter.

[Stella Creasy]

Will the hon. Gentleman give way?

[Gavin Robinson]

I will, but I am conscious of time and I have a bit more to say.

[Stella Creasy]

For the avoidance of doubt, no Labour Members are opposing devolution. Many of us have been strong supporters of it in many different ways. We are concerned tonight to hear that a piece of legislation written in good faith in this House is going to be amended to say something different by the Government—that is what the Minister will have to do, because it does not say that. That is the concern. This is about honesty with the British public about what we voted for and intended that is now up for grabs.

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[Gavin Robinson]

That is right. The people of Northern Ireland are concerned by the proposals and by the absence of any regulation over the next five months. We will be devoid in Northern Ireland of any legislative protection. The Minister referred to section 25 of the Criminal Justice (Northern Ireland) Act. I do not believe he was right. I would like him to consider this point. He indicated that it provided a legal protection from termination during this five-month period, but it applies only to a woman whose pregnancy is at such an advanced stage that the child is capable of being born and living. We are talking about towards the end of gestation, arguably 27 or 28 weeks. At that stage, there would be some difficulties, but not a barrier.

People have talked in this Chamber about legislation in England that says that healthcare professionals have to be regulated individually, but that is not the case in Northern Ireland. The piece of paper I am holding here is a legal opinion from a QC who is pre-eminent in the field of healthcare. He is also a former Labour Member of Parliament: David Lock. This legal opinion lays out in stark terms the lack of any legal protection that will be available in Northern Ireland over the next five months. [Interruption.] I see people sitting on the Labour Benches to my right dismissing this, shaking their heads and saying it is not true. Well, it is, and it is not just their former colleague making this point. The Northern Ireland Human Rights Commission has made exactly the same point. It said:

“The likelihood of individuals resorting to potentially unsafe practices remains while prosecutions under the criminal law have been removed and a healthcare process not yet been established.”

In Northern Ireland, we regulate the buildings not the people. I wish to ask the Minister a series of questions. I will understand if he cannot answer them in full this evening, but if he cannot, I think we will need a written response in quick time. Can he indicate which piece of legislation in Northern Ireland over the next five months will preclude terminations where there is not a person qualified to do one? What law stops a non-qualified person, when consent is present, carrying out such a termination? What legislation precludes terminations taking place anywhere or what legislation requires a termination over the next five months to take place in a hospital or clinic? Those are serious questions.

The hon. Member for Lewes (Maria Caulfield) raised the concerns of women in Northern Ireland. They are concerned about the lack of any legislative protection whatsoever as a consequence of the cavalier attitude taken when passing the legislation in the House.

[Stella Creasy]

I understand that the hon. Gentleman is concerned about this, but he is simply wrong to say that the Act, which only repeals sections 58 and 59 of Offences Against the Person Act 1861, removes all legal protection. For example, will he confirm that the Criminal Justice (Northern Ireland) Act 1945, which refers to child viability in Northern Ireland, will still be in place? It is not removed by this legislation. It is simply not true that there will be no legal or regulatory framework. He might want a new one, but it is not true that it does not exist.

[Gavin Robinson]

The hon. Lady has not answered any of my questions. She does not accept, as the Minister outlined in the report, that section 25 of the 1945 Act is not adequate. She does not accept that in Northern Ireland we do not regulate individuals who carry out procedures, and she does not accept that we have no legislation that would indicate where those procedures can take place. She does not accept the views of the Northern Ireland Human Rights Commission, which has expressed its concerns very clearly. I can assure you, Mr Deputy Speaker, that the Northern Ireland Human Rights Commission does not often look to me for advice, and nor do I look to the commission. We approach things from completely different perspectives, but we have exactly the same concerns.

Thank you, Mr Deputy Speaker, for allowing me to exceed my allotted time. I think that the interventions have been helpful, and I am thankful for the opportunity to speak.