Viscount Younger of Leckie
Main Page: Viscount Younger of Leckie (Conservative - Excepted Hereditary)Abortion (Northern Ireland) (No. 2) Regulations 2020
Viscount Younger of Leckie Excerpts
Viscount Younger of Leckie
That the Regulations laid before the House on 13 May be approved.
Special attention drawn to the instrument by the Secondary Legislation Scrutiny Committee, 16th Report.
Viscount Younger of Leckie (Con)
My Lords, noble Lords may be aware that these represent the second version of the regulations. Given the unprecedented changes created by Covid-19, we had no choice but to remake them and give Parliament an additional 28 days to consider them. I am pleased that we can now debate the regulations today. In particular, I look forward to the remarks of the noble Baroness, Lady O’Loan, and my noble friend Lord Shinkwin, who will speak to their amendments.
The regulations provide the new legal framework for access to abortion services in Northern Ireland and ensure ongoing legal certainty from service provision starting with effect from 31 March 2020. As many noble Lords will be aware, prior to these changes, starting with decriminalisation in October 2019, abortion in Northern Ireland was accessible only where a woman’s life was at risk, or the pregnancy would adversely affect her physical or mental health in a manner that was “real and serious” and “permanent or long term”. This meant that women and girls were forced to travel to England to access services—1,014 in 2019 alone—or look to unsafe alternatives outside the healthcare system, thus potentially putting themselves at risk, and feeling scared to receive proper aftercare health treatment given the criminality. I can only start to imagine the distress that this has caused.
I recognise that this is an emotive issue and that views on all sides of the debate are strongly held. I am sure that this afternoon will be no exception. These are extremely difficult and often distressing decisions for women and girls and, where involved, partners and families. However, the essence of these regulations is to provide women and girls with the opportunity to be able to make individual informed decisions based on their own health and wider circumstances. As a result of the absence of the Assembly and a functioning Executive, Parliament placed this duty on the Government to act to protect the human rights of women and girls.
The Government have to provide lawful access to abortion services in Northern Ireland in a way that implements the recommendations of the CEDAW report on Northern Ireland, the underlying important premise of which is to ensure that abortions are delivered as part of safe sexual and reproductive healthcare services. Parliament voted through Section 9 of the NIEF Act with a two-thirds majority in support of decriminalisation of access to abortions, except for late-term abortions where the offence of destroying a child capable of being born alive would still apply.
The regulations set out the specific parameters within which abortions could legally take place. They first properly protect and promote the health and safety of women and girls and, secondly, provide clarity and certainty for the medical profession. We consulted on this: there was a six-week period, including briefings with the Northern Ireland parties and engagement with a range of representative groups and individuals with lived experience, followed by careful analysis of the submissions received. I acknowledge that there was a vote in the Northern Ireland Assembly on 2 June, but it was on one issue—severe foetal impairment—and was not a motion to vote down these regulations. As abortion remains a devolved issue, the Assembly is now able to legislate, or indeed amend the regulations, should it so wish, but only if it can agree a way forward that remains CEDAW and convention-compliant.
I will now give a brief overview of the key elements of the regulations. They provide for access to abortions without conditionality up to 12 weeks’ gestation. This ensures a system that avoids any further trauma or a barrier to access for victims of sexual crime, as required by CEDAW. This provision is necessarily different from the law in the rest of the UK, given the decision by Parliament to decriminalise abortion in Northern Ireland, which creates a different starting point for the statutory framework. These different parameters do not result in unintended consequences, such as allowing sex-selective abortions, as some have suggested. The regulations also set out a further three circumstances in which an abortion is possible.
The first is: up to 24 weeks’ gestation in cases where continuance of the pregnancy would involve risk of injury to the physical or mental health of the pregnant woman or girl, greater than the risk of terminating the pregnancy. The second is in cases of severe foetal impairment and fatal foetal abnormalities, with no gestational time limit. This is where there is a substantial risk that the condition of the foetus is such that the death of the foetus is likely before, during or shortly after birth; or, if the child were born, it would suffer from such physical or mental impairment as to be seriously disabled. We recognise these are very distressing circumstances, usually arising in cases of wanted pregnancies, and appropriate support and provision of information are key so that women can make informed decisions, based on what is right for their health and wider circumstances, including if they want to carry the pregnancy to term and have proper support going forward. The third is in cases where there is a risk to the life of the woman or girl, greater than if the pregnancy were terminated, or where necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman or girl, with no gestational time limit. In such cases, the regulations require that two medical professionals certify in good faith that the ground for the abortion has been met. While CEDAW’s report is silent on the question of gestational limit in such circumstances, we consider the aforementioned grounds an appropriate way of delivering on our statutory duty and implementing the recommendations of the CEDAW report in a way that will work effectively in practice.
The regulations allow for abortions to be provided by a doctor, nurse or midwife. They may be carried out in general practitioners’ premises, clinics provided by a health and social care trust, and health and social care trust hospitals, operating under the overall Northern Ireland health and social care framework. The Department of Health in Northern Ireland has a power to approve other places. Medical professionals are required to notify the Northern Ireland CMO of the abortion, alongside other relevant data specified in the regulations, with subsequent annual publication of data.
Finally, the regulations impose a criminal sanction on anyone who intentionally terminates or procures the termination of the pregnancy of a woman otherwise than in accordance with the clear requirements and conditions set out in the regulations, including the certification and notification requirements. This is about where someone is acting dishonestly or negligently—not where a medical professional forms an opinion as to risk in good faith and certifies that an abortion can take place but makes a factual error—and requires the consent of the DPP before proceedings can be brought under the regulations. Other criminal laws also continue to apply, including Section 25 of the Criminal Justice Act 1945, which prohibits the destruction of a child otherwise capable of being born alive, but abortions provided in accordance with the grounds of the regulations are exempt from this and no woman or girl can be prosecuted with respect to ending her own pregnancy.
I know that many noble Lords have expressed concerns that this has resulted in a more liberal regime than Great Britain’s, but this is not the case. The regulations deliver equivalent outcomes in practice and access to services to those in the rest of the UK while still implementing what CEDAW requires. The Government stand ready to provide whatever support and guidance we can to the Northern Ireland Minister for Health and his department to assist with setting up abortion services in line with these regulations.
I look forward to the debate and will seek to address as many questions as I can in closing. I hope that the regulations will be supported. I beg to move.
Viscount Younger of Leckie
My Lords, I find myself agreeing with pretty well all the comments made by the noble Baroness, Lady Smith. I thank her for her remarks. I also thank all noble Lords who contributed to the debate.
I fully recognise that this is a sensitive and emotive issue for many. I have listened very carefully. I recognise that several noble Lords with long-held views registered their strong opposition to what we are doing but, as the noble Baroness, Lady Thornton, said, we are under a clear statutory duty; and, as the noble Lord, Lord Hain, said, it is important that women and girls in Northern Ireland are afforded equal rights to those living across the rest of the UK. On the other side of the argument, there are some who consider that we have not gone far enough.
Before I turn to the issues raised, a few noble Lords questioned the extent of our legal powers. I note, as the noble Baroness, Lady Scott, said, that the JCSI has not drawn the instrument to the attention of both Houses for being ultra vires. The noble Lord, Lord Elton, and my noble friend Lord Cormack should know that the Procedure Committee agreed that, like others, these regulations are at present subject to 90 minutes. This was also subject to agreement in the usual channels.
I also note the amendments to the Motion tabled by the noble Baroness, Lady O’Loan, and my noble friend Lord Shinkwin, and I hope that my answers on the issues raised this evening go some way to indicating why the amendments should not be supported.
Some noble Lords, including the noble Baronesses, Lady Ritchie and Lady O’Loan, and my noble friend Lady Stroud, raised the constitutional propriety of these regulations being legislated for from Westminster, and the Northern Ireland Assembly’s debate on 2 June, which called for the removal of regulations permitting abortions in the case of severe foetal impairment rather than fatal foetal abnormality.
As my noble friend Lord Bourne pointed out, the UK Parliament, by way of Act of Parliament, compelled the UK Government to ensure that the regulations were in force by 31 March 2020. Section 9 of the Act would not have applied if an Executive in Northern Ireland had been set up on or before 21 October 2019, as set out in Section 13 of the Act. Had that happened, the regulations could not have been made.
The Motion itself does not tell us what the Northern Ireland Assembly is for; it highlights only the part of the regulations that it is against, which the noble Baroness, Lady Smith, pointed out. I remind noble Lords that the regulations can be amended in Northern Ireland should that be so wished in the future, so long as any amendment is compatible with the ECHR and compliant with CEDAW—again, as the noble Baroness, Lady Smith, said.
On the issue of disability, I fully appreciate the concerns raised, particularly in the powerful contribution from my noble friend Lord Shinkwin. He is a friend and I have a particular respect for him. I recognise that this is a highly sensitive issue. Noble Lords are aware that part of these regulations calls for access to abortion in the case of both severe foetal impairment and fatal foetal abnormalities. It is our firm view that the regulations fully comply with the statutory duty under Section 9 of the NIEF Act, which includes implementing all recommendations in the CEDAW report.
The regulations mirror the law in the rest of the UK, where abortions are permitted in cases of severe foetal impairment and fatal foetal abnormality, with no time limit. The Government would never act to discriminate on the basis of disability. We maintain that the regulations are consistent with the rights under the United Nations Convention on the Rights of Persons with Disabilities, which is an important point to make.
Turning to sex selection, raised by the noble Baroness, Lady O’Loan, and my noble friend Lady Eaton, medical practitioners are under no obligation to provide treatment in all cases under Regulation 3, irrespective of the absence of an express requirement for the woman to meet a legal test for gestations up to 12 weeks. That would particularly be the case where the practitioner has concerns that the woman is conflicted and undecided on whether to proceed with the abortion, where they have reason to believe that the woman has been coerced or put under pressure by a partner or family member to proceed, or where other issues of concern are identified. Furthermore, in Northern Ireland under the NHS, scans to detect the sex of the foetus take place between 18 and 21 weeks’ gestation. At that stage of gestation, a woman would be able to access an abortion lawfully only up to 24 weeks’ gestation where
“the continuance of the pregnancy would involve risk of injury to the physical or mental health of the pregnant woman which is greater than if the pregnancy were terminated”
or with no gestational limit in relation to severe foetal impairment or fatal foetal abnormality or where there is
“Risk to life or grave permanent injury to physical or mental health of”
the pregnant woman, or in cases of immediate necessity, as pointed out earlier. This is similar to the rest of the UK under the Abortion Act 1967.
Data collection, analysis and publication on abortion-related matters, including sex selection in Northern Ireland, will be a matter for the Department of Health in Northern Ireland to take forward, as part of commissioning full abortion services, consistent with the Northern Ireland regulations.
I recognise that a few noble Lords have concerns about the regulations providing unconditional access to abortions up to 12 weeks’ gestation. As I noted in my opening remarks, the provision was determined as the most appropriate way of meeting our statutory duty and what CEDAW requires by ensuring that women, including victims of sexual crime, access services without undue delay while avoiding anything that could lead to further trauma or act as a barrier to access. Based on current public data, 86% of the abortions accessed by residents of Northern Ireland in England under the Abortion Act 1967 in 2018-19 took place prior to 12 weeks’ gestation and would be covered by this limit.
We consider that this approach will ensure that women resident in Northern Ireland will have access to abortion without conditionality in the vast majority of cases where it is their individual choice to use it. This approach ensures compliance with CEDAW requirements. This is appropriate given that the position in Northern Ireland, following repeal of Sections 58 and 59 of the Offences Against the Person Act, is that abortion early in pregnancy has been lawful since October 2019.
The noble Baroness, Lady Smith, asked some questions about compliance with regulations, and I will write to her because I have a lot that I would like to say about the close co-operation between the health services in England and Northern Ireland in terms of helping where required. The health service in Northern Ireland should take these regulations forward and provide top-class services for those women and girls who require an abortion service.
The noble Lord, Lord Morrow, the noble Baroness, Lady O’Loan, and others stated that the regulations do not provide adequate sanctions and, therefore, leave a big gap in the law, putting women at risk of abuse and coercion. I hope I can reassure them that that is a misleading interpretation of the protections that remain in place across the statute book to protect the health and safety of women and girls. As well as the sanctions for intentional breaches of the regulations, other criminal laws continue to apply. Taken together, they ensure that the safety of women and girls remains paramount, and that medical professionals are able to provide abortion services in good faith and in the interests of their patients within clear legal parameters.
As you might expect me to say, with 41 speakers, it is impossible to answer every question. I will look extremely carefully at Hansard after this debate and I shall certainly write a letter to address all the points that I have not managed to address. Bearing in mind the strong feelings expressed this evening, the regulations are ultimately about the rights of women and girls and them being able to access medical treatment in distressing and difficult circumstances, where they have a right to choose what is right for them. We should act in a way to support them in these cases, as the noble Lord, Lord Dubs, and the noble Baroness, Lady Hayter, said, to prevent women and girls being forced to cross the Irish Sea for abortion services. That is why I commend the regulations to the House. I beg to move.
Baroness O’Loan
I wish to draw to the attention of the House that the noble Lord, Lord Kilclooney, was told that he was not permitted to speak, and he left the Chamber in disgust.
The noble Lord, Lord Duncan, suggested that we have discussed these regulations before. We did not know there would be sex-selective abortion to 12 weeks. That is not allowed in Great Britain, and what the law does not forbid is permitted. We did not know there would be abortion to birth for non-fatal disabilities. The noble Lord, Lord Hain, suggested that Ireland has corresponding regulations; the law in Ireland is much more limited. Three of the regulations are manifestly ultra vires. The Government have power under Section 9 to amend these regulations. There is no international legal obligation to give effect to these regulations. The Government could introduce different regulations; it is not this or nothing. I am going to ask the noble Lords to vote “Content” to my amendment. I wish to test the opinion of the House.