My Lords, I put my name to Amendment 16. I should like to speak to it and, briefly, to Amendments 10 and 11.
I have no doubt that the ultimate purpose of Clause 4 and Amendments 10 and 11 is to change Northern Ireland and United Kingdom law by decriminalising abortion. This would mean that abortion would cease to be illegal in all circumstances. That means that any baby, at any stage of gestation, right up to birth, could be aborted. No human right exists to do that. I think noble Lords would wish to accept that that, at least, is true. There is no human right to abort babies as described. To decriminalise abortion would be, to my mind, the act of an uncivilised society.
We do not have any declaration of incompatibility. If we had such a declaration, it would not change primary legislation, nor would it create an imperative for changing primary legislation. The law is provided for in Section 4 of the Human Rights Act, which says:
“A declaration … does not affect the validity, continuing operation or enforcement of”,
any provision, and,
“is not binding on the parties”,
to the action. The effect of a declaration of incompatibility, which we do not have, would be not to change the law, but to ask the Northern Ireland Assembly to think about changing the law. Having considered a declaration
of incompatibility, were one to exist, the Government would have the option to do nothing. The noble and learned Baroness, Lady Hale, in her Supreme Court judgment, said that Strasbourg would have regarded doing nothing,
“as within the UK’s margin of appreciation. It is at this point that the democratic will, as expressed through the elected representatives of the people, rules the day”.
The Secretary of State is the representative of the UK Executive. She is not the Northern Ireland legislature for any purpose of considering a change in the law. It is not for the Secretary of State to assume the role of the Northern Ireland Assembly to change primary legislation—nor has she indicated any wish to do so—or to issue new guidance pursuant to primary legislation.
Since health and justice are devolved matters, since this Bill does not change the law on abortion in Northern Ireland, and since the courts have no power to change the law in this respect in Northern Ireland and have not done so, the law stands. Since the matters referred to in Clause 4 and Amendments 10 and 11 are matters of law in Northern Ireland, and since only the legislature in Northern Ireland may make law in respect of those matters, it must surely be illogical to ask the Secretary of State to issue guidance, which would be incompatible with that law.
I have nothing more to say on the matter, other than that we need to think very carefully, and that Amendments 10 and 11, as the noble and learned Lord, Lord Mackay, says, direct the Secretary of State to do something that would be unlawful.