My Lords, this is an instrument dealing with abortion. It is put forward under the authority of Section 9 of the Northern Ireland (Executive Formation etc) Act 2019. The introduction to that Act states that what it proposes is subject to the formation of the Executive. As your Lordships know, the Executive have now been operational for 15 months and accordingly it appears to me that the Act on which the Government are relying is not operative at the present time.
In any event, there are only three grounds under Section 26 of the Northern Ireland Act 1998 under which this Parliament can intervene in a devolved matter by statutory instrument in Northern Ireland: international obligation, safeguarding defence or national security, and protecting public safety or public order. The only question at issue under the statutory instrument is international obligation. The Northern Ireland Office made it clear in its submission to the Secondary Legislation Scrutiny Committee that there is no international obligation which requires this particular instrument, nor is this instrument enforceable except by the
questionable process of judicial review. Accordingly, it is contrary to these provisions for this instrument to be enacted. It is, further, of considerable damage to the settlement in Northern Ireland for this instrument to be forced on the people of Northern Ireland without the agreement of the Executive. It is obviously a matter of considerable dispute in Northern Ireland and it is surely the objective of devolution to allow such matters to be decided in Northern Ireland itself.
In addition to these difficulties, the House of Lords Secondary Legislation Scrutiny Committee has said:
“We regard it as poor practice to bring new policy into effect when the House is not sitting, and using a procedure which prevents discussion before the legislation takes effect. It is particularly inappropriate when that policy is likely to be controversial.”
The House, it says, may wish to ask the Minister to explain why:
“Contrary to the convention of allowing at least 21 days between laying an instrument and bringing it into effect, the 2021 Regulations came into effect eight days after laying.”
I therefore take up the committee’s suggestion that the House may wish to press the Minister for further justification as to why the Northern Ireland Office decided to bring these regulations into effect in breach of the 21-day convention, and during the Easter Recess.
My main point, of course, is my first one: that these regulations are ultra vires of the Secretary of State in the present circumstances and I find it impossible to support them.