I absolutely agree. If Members will permit me, I will go into detail on those concerns.
Last year, this House debated a similar Bill and many similar arguments were aired when we debated the amendment tabled by the hon. Member for Walthamstow (Stella Creasy), which was passed and became section 4 of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018. That section required the Secretary of State to
“issue guidance to senior officers of all Northern Ireland departments which will specify how to exercise their functions in relation to—
(a) the incompatibility of the human rights of the people of Northern Ireland with the continued enforcement of sections 58 and 59 of the Offences against the Person Act 1861 with the Human Rights Act 1998”
within three months of the Act passing. That guidance was issued by the Secretary of State in December. She clarified that:
“No declaration of incompatibility under section 4 of the Human Rights Act 1998 has been made by the Courts in respect of sections 58 and 59 of the Offences Against the Person Act 1861.”
She added that the guidance notes that it does not, and cannot be used to change the current law on abortion. Section 4 did not require any further reporting on the law or its operation in Northern Ireland. So here we are again with Members seeking to put forward a considerable number of amendments relating to substantial changes to the law on abortion in Northern Ireland, despite this issue being within the devolved competence of the Assembly.
2.15 pm
I am disappointed that new clause 10, which seeks to change the law substantially, has been selected, along with new clauses 11 and 12, and I wish to make three initial points on that proposal. First, it clearly overreaches the devolution settlement and sets a precedent that should concern all the devolved jurisdictions. Secondly, the people of Northern Ireland would have no opportunity to have a say in the decision, which does not respect democracy, if we were to pass these new clauses today. Thirdly, they require the Secretary of State to bring forward regulations, but I understand that those will be unamendable. This is no way to legislate for sensitive matters such as abortion.
The amendments tabled by the hon Member for Walthamstow rely on the authority of CEDAW and its committee, which is a minor sub-committee of the UN that looks at that convention. It is important for
this House to note that the convention does not provide a right to abortion. That is not my opinion; hon. Members will want to hear the views of Lord Wilson, a Supreme Court Justice in the 2017 case of R (A and B) v. Secretary of State for Health, who said:
“The conventions and the covenant to which the UK is a party carefully stop short of calling upon national authorities to make abortion services generally available. Some of the committees go further down that path.”—
as the CEDAW committee has—
“But, as a matter of international law, the authority of their recommendations is slight.”
The hon. Lady also suggests that, since the CEDAW committee made various recommendations on the law on abortion in Northern Ireland, the Secretary of State must act. But the Northern Ireland Act 1998 devolved human rights to the Northern Ireland Executive. In the case where the Supreme Court makes a declaration of incompatibility under section 4 of the Human Rights Act 1998, which it has not, it is for the Northern Ireland Assembly to act. However, the hon. Lady is suggesting the Secretary of State must act under section 26 of the Northern Ireland Act—she relies heavily on that. It requires action from the Secretary of State if proposed actions by the Assembly are considered incompatible with international obligations or she considers actions should be taken to give effect to international obligations. However, the guidance issued in December 2018, which I have just cited, made it clear that the Secretary of State does not believe that we are in either of those situations. Her guidance did not even mention the CEDAW committee, upon which the hon Member for Walthamstow relies for authority. That is not surprising, as it is a committee with no judicial authority.
Professor Mark Hill, QC has written extensively about the authority of the CEDAW committee and its report. He says in paragraph 4 of his opinion:
“The Committee does not have the capacity or standing to give a binding adjudication on the United Kingdom’s obligations under CEDAW or on the proper interpretation of CEDAW. The interpretative function under the CEDAW is reserved, not to the Committee, but to the International Court of Justice.”
He goes on to say in paragraph 5:
“The Committee’s views are not binding interpretation of the law, nor do they contribute to customary international law when approaching the interpretation of these rights.”
I make no apology for quoting at length from the opinion: it is really important because of the reliance of the hon. Member for Walthamstow on the CEDAW committee. Professor Hill says:
“The text of international treaties such as CEDAW are carefully crafted expressions of intent and belief. There is no reference to abortion in the text of CEDAW. There is nothing in the text of CEDAW which requires a state party to allow abortion on specified grounds and/or decriminalise abortion generally. The absence of such a provision in the formal text gives a clear indication that no such obligation exists. The International Court of Justice has not interpreted CEDAW in a manner which departs from the plain wording of the text so as to require a right to abortion or the decriminalisation of abortion to be “read in”.
Finally, Professor Hill says:
“Nevertheless, the Committee, ‘based on its expertise in interpreting [the Convention]’, recommends that abortion be decriminalised in all cases and asserts that ‘States parties are obligated not to penalise women resorting to, or those providing such services [abortion]’. The Committee is not a judicial body, no source is given for its claimed ‘expertise in interpreting’ CEDAW”.
It simply does not have the power it has abrogated to itself to interpret the CEDAW regulations in the way that the hon. Member for Walthamstow proposes.
The Chair of the Women and Equalities Committee referred to its report on abortion in Northern Ireland. The decision on the report was not unanimous. In the minority report, my hon. Friend the Member for Walsall North (Eddie Hughes) said that
“to suggest that the Government establish a framework to address the recommendations of the CEDAW report places a disproportionate and misguided degree of authority on its substantive findings and the limited jurisdiction of this unelected UN Committee.”
Indeed, the non-binding nature of the CEDAW committee’s report was acknowledged by the chief executive of the Northern Ireland Human Rights Commission himself in evidence to the Women and Equalities Committee during that inquiry.
Let me turn briefly to the Supreme Court judgment that has been referred to. That judgment is non-binding. It is being used to justify the proposals for change, but there is nothing in it that could be said to give rise to a requirement for such a change. The Supreme Court and Lady Hale made it clear that, although important, CEDAW and other treaties are not binding on our domestic law. There is simply no basis for the Secretary of State to act on the basis of the CEDAW report. New clauses 10, 11 and 12 should be rejected. The law on abortion is a matter for the people of Northern Ireland. I hope we will see the Assembly restored soon so that this matter can be resolved in its right and proper place.