My Lords, this is a Bill that we have seen many times before and we understand the reasons for it.
I am sorry; I intended to start by paying tribute to Sir Anthony Hart, who I knew well in my university days. He made a very significant contribution to the law in Northern Ireland and I would like to join those who have offered condolences to his family.
The Minister was quite brief in opening this debate, and I can understand why. Like the rest of us, he is not really clear about what has happened or what is likely to happen. We are in a very unusual situation. Unfortunately, this House and the other place have been going steadily downhill for the last year or two. We now see the sort of shenanigans that are going to be introduced here, the way they were in the other place. We can expect Amendment 14—the one that the Government won—to be reintroduced here. It will be interesting to see what the approach will be in this House. I would not like to predict what the situation will be.
I understand a lot of the chagrin that the noble Lord, Lord Morrow, feels about this matter. However, he was sailing close at some points to blaming the Government for this shambles, when it was not the Government’s fault. They tried to prevent some of the amendments that were tabled and were successful in some areas. We do not know what the Government are going to do next week; I am sure that the Minister cannot give us an answer at the moment. However, we see that the processes in this House are being hijacked, partly by the clique in the Commons which is trying to prevent us leaving the European Union. That is not something of which they should be proud. There are also other issues which have been mentioned with regard to abortion and same-sex marriage. Those are delicate matters. I have found myself taking a particular position with regard to same-sex marriage, which was forced upon me when my elder daughter got married to her girlfriend. I cannot change that, and I cannot now go around saying that I am opposed to it because I acquiesced to it. There we are.
With regard to abortion, I find it rather curious. I know that there are strong feelings on that issue as well. People say the law this and the law that, and various campaigns are trying to urge Parliament to extend legislation to Northern Ireland, but I find that people are not looking closely at what the law is. The law on abortion in Northern Ireland is partly on statute but most of it flows from common law, from the Bourne case of 1939. People say that abortion is banned in Northern Ireland. It is not; abortion is legal in Northern Ireland. I see heads shaking on the other side of the Chamber but they are wrongly shaken. I think there is only one situation that is not covered. There is a gap with regard to foetal abnormality, and I think that is the only point where the law in Northern Ireland diverges from the law here.
I mentioned the Bourne case. I decided that I would go and look at it again because it has been many years since I have read it. In 1939, a 14 year-old girl who had been raped by five soldiers and became pregnant afterwards was obviously distraught about her situation. She found a surgeon in a London hospital who was prepared to conduct an abortion, and then the legal system came into effect. The legal decision that flows from that—it actually flows from Section 59 of the
1861 Act—is the beginning of the law on abortion in England, Wales and Northern Ireland. The judge’s interpretation of that, having regard also to the Infant Life (Preservation) Act 1929, was that a person who procures an abortion in good faith for the purpose of preserving the life of the woman is not guilty of an offence. When we talk about preserving the life of the woman, the key part of the judgment states that,
“those words ought to be construed in a reasonable sense, and, if the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck … the doctor who, under those circumstances and in that honest belief, operates, is operating for the purpose of preserving the life of the mother”.
That is the law in Northern Ireland. It is also the guts of the Abortion Act 1967. The key passage in the provisions in that Act, setting out the circumstances where abortion can be carried out, is,
“and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman”.
Those are virtually the same terms as in the Bourne case. Those who want a campaign to extend the Abortion Act to Northern Ireland are talking only about whether the law is going to be enshrined in legislation or enshrined in case law; the substance is the same. So there is no necessity for what the Commons did yesterday, and what they did has not advanced the case that some persons obviously want to advance. As I heard from behind me, the way that the Commons behaved is going to make it more difficult to deal with the situation.
I have dealt with two of the matters for which the proceedings have been hijacked. The other, of course, comes back to Amendment 14, as I mentioned, which purports to be something that is going to block a no-deal departure from the EU. We do not know what is going to happen. Amendment 14 was not actually carried last night but the elements around that amendment are there. Indeed, Dominic Grieve said in last night’s debate that without Amendment 14 he thinks he can still achieve the same objective, but we will see as and when that happens.
I want to say something about this no deal business. I do not know whether people have a good, clear, evidence-based reason to support the contention that leaving the European Union on WTO terms is a disaster. I do not see any evidence for that at all. We will see when the time comes. I think that a few days after we leave the European Union there will be a lot of red faces in this building, but I will leave it at that.
There may be something beneficial in all this. The noble Lord, Lord Morrow, referred to when Sinn Féin pulled the plug on the Northern Ireland Assembly. At that time, one of the factors in its mind was that it thought it could exploit Brexit in order to get an electoral boost in southern Ireland. It has not worked. A very encouraging, little-known fact is that Sinn Féin lost half its seats in the local elections in the south just a short time ago. In the opinion polls, it is going down sharply. The Irish Taoiseach also thought he could gain politically from causing an issue over Brexit, but the situation is not looking so good. Consequentially, getting Brexit finished, and finished quickly, will help
people to focus on other serious issues and there will be a better chance of restoring the Assembly in that context. We should hope for that to come quickly and smoothly and then we can all settle down to do some serious work.
5.37 pm