My Lords, as the Minister said, there has been and continues to be very significant opposition to the imposition of the extreme abortion regime in Northern Ireland by this Government. It was done in July 2019, in circumstances that beggared belief. It left Northern Ireland with abortion law that goes further than that which applies elsewhere in the UK and that has been, and continues to be, rejected by the vast majority of people in Northern Ireland. Notwithstanding that opposition, the Northern Ireland Government have been acting in compliance with the 2019 Act and the 2020 regulations—I will deal with this in a minute.
The process by which we in Northern Ireland are governed is provided for in the Northern Ireland Act 1998. In its third report, the Secondary Legislation Scrutiny Committee of your Lordships’ House stated that these regulations
“allow the Northern Ireland Assembly Executive Committee to be bypassed”.
The Executive Committee is provided for in Section 20 of the Northern Ireland Act 1998. Section 20(3) and (4) provide:
“The Committee shall … have the function of discussing and agreeing upon … significant or controversial matters”
and those that cut across the responsibility of more than one Northern Ireland Minister. Accordingly, the Ministerial Code requires Northern Ireland Ministers to bring such matters to the attention of the Executive Committee. Abortion is a significant, controversial matter.
On each occasion when draft regulations have been presented to Parliament following the passing of the executive formation Act, they have extended abortion provision in Northern Ireland; it happened in 2020, in 2021 and now, in 2022. Despite the fact that a duly
elected and appointed Northern Ireland Minister of Health is in office and working, we see an attempt to bypass him and give the Secretary of State for Northern Ireland powers that are not available to Northern Ireland Ministers or their government departments. All of this is inconsistent with the existing statutory provisions for government in Northern Ireland and with the international obligations of the British Government under the 1998 Good Friday/Belfast agreement.
Ignoring the expressed views of the people prior to the passing of the Abortion (Northern Ireland) Regulations 2020, Northern Ireland now has an abortion law that goes far beyond what was legally required by the formation Act 2019. Regulations provide that abortions can be carried out up to 12 weeks, permitting abortion of any baby, for any reason, including on the grounds of its sex. This provision is not consistent with the UN CEDAW report, on which the 2019 legislation was based. CEDAW has said that sex-selective abortion should not happen because it perpetuates negative stereotypes and prejudices towards women. I believe that it is not permitted in the rest of the UK.
Abortion can be carried out up to 24 weeks if one nurse or doctor certifies that
“the continuance of the pregnancy would involve risk of injury to the physical or mental health of the … woman which is greater than if the pregnancy were terminated”,
taking into account her “actual or … foreseeable circumstances”, such as poverty. Again, this is much wider than in the rest of the UK.
Abortion can be carried out in Northern Ireland up to birth, if it is
“immediately necessary … to prevent grave permanent injury to the physical or mental health, of the pregnant woman”,
if two doctors or two nurses certify that the termination is necessary to prevent such injury and if there is a
“substantial risk that … the child … would suffer from such physical or mental impairment as to be seriously disabled.”
This would include babies with Down syndrome or cleft palates. Again, this is much wider than in the rest of the UK.
As the noble Lord, Lord Shinkwin, said in 2020, speaking of babies with disabilities, this
“promotes and perpetuates disability discrimination.”—[Official Report, 15/6/20; col. 1981.]
So in Northern Ireland we have babies’ lives being terminated because of their sex or their disabilities, among other reasons.
In 2021, the Abortion (Northern Ireland) Regulations gave expansive powers to the Secretary of State, allowing him, for the purposes of implementing the recommendations in paragraphs 85 and 86 of the CEDAW report, to direct that action must be taken by Northern Ireland Ministers, departments, the Regional Health and Social Care Board and the Regional Agency for Public Health and Social Well-being. However, it is a discretion, not a duty. It says he “may” act. He does not have to act, and if he does not act, there will be no successful challenge.
Now we have the 2022 regulations. First, they disregard the statutory role of the Northern Ireland Assembly and ignore the devolution settlement. Secondly, they make substantial constitutional changes by way of
secondary legislation. It is not the case that the Northern Ireland Assembly is in breach of its legal obligations to implement CEDAW. It is work in progress. Many changes have occurred. Abortion has been decriminalised in most situations, as required. Abortion is now available in Northern Ireland. The Minister has access to figures, which I could not find when I checked again this morning, and he has told us that there were 2,794 abortions in Northern Ireland in the last year and that in the previous year there were 1,345. These figures represent a 60% increase on the number of those who went to England and Wales for abortions in 2019.
The exclusion zones mentioned in the CEDAW report have now been provided for in law, in a Bill that was passed by the Northern Ireland Assembly and is currently, I believe, subject to legal challenge. As I have said previously, the Secretary of State is not in breach of his obligation. He has a discretion, not a duty, and this is work in progress.
I now address the first issue: that the regulations disregard the statutory role of the Northern Ireland Assembly and ignore the devolution settlement. The democratically elected Northern Ireland Assembly, acting in accordance with its constitutional processes, did not choose to legislate further or to commission directly abortion services that are otherwise provided. Abortion is available; 2,794 abortions in our small area is evidence of that. The Northern Ireland Assembly could have done so but it chose not to.
Your Lordships know that the history of Northern Ireland is tragic. After decades of war, the Good Friday/Belfast agreement of 1998 provided for the process of government within Northern Ireland. The arrangements that we have protect the rights of citizens by providing for the Assembly and the Executive, comprised of the First Minister and the Deputy First Minister, who are joint chairs, and eight other Ministers. Their job, as the Government’s website says, is to exercise executive authority on behalf of the Northern Ireland Assembly and to take decisions on significant matters and issues. Health is, as I have said, one of the matters that have been devolved to Northern Ireland. The Government’s website says:
“This means that local politicians, instead of MPs in Westminster, make key decisions on how Northern Ireland is governed.”
It is most regrettable that after our last election in May, there is as yet no sitting Assembly and no Executive. However, in the absence of the Assembly, Ministers in office before the election continue to hold office and have decision-making powers. There is a working Minister of Health, Mr Robin Swann MLA of the Ulster Unionist Party. He has massive responsibilities. Our health service has been described as “broken” by the director of the Royal College of Nursing and as “extremely broken” by a leading ED consultant and many others. We are short of some 7,000 medical and nursing staff.
There were 2,794 abortions last year. In April 2021, more than 300,000 people, almost 20% of our population, were waiting for a first consultant appointment. On 31 March 2022, 156,270 patients were waiting, having seen a consultant, for a diagnostic test and 50.7% of patients were waiting more than nine weeks for a diagnostic test to find out whether they have conditions
which may be very serious or even life threatening. Some 29.6% of patients have been waiting more than 26 weeks for a diagnostic test. Only 43% of all cancer patients start treatment within 16 days of an urgent GP referral for suspected cancer.
We have amazing cataract waiting times. I declare an interest because I have cataracts and am awaiting surgery, but the waiting time is four to five years. However, you are not allowed to go on the waiting list until your eyesight is so bad that you cannot drive. You wait, with deteriorating sight, until you cannot drive, and then you wait another five years.
Just yesterday, Minister Swann published an action plan setting out a programme of reform for the delivery of stroke and orthopaedic services. Northern Ireland has 25,526 people waiting for orthopaedic treatment. I declare an interest as I am on the list. They can expect to wait four or five years for surgery that will give them mobility, without which their physical and mental health will in all probability decline further.
Abortion has been made available within the law. As Minister Swann has stated:
“My Department does not dispute that women in Northern Ireland are legally entitled to abortion services. The legal advice that was received by my Department states that the Abortion (Northern Ireland) Regulations 2020 do not require my Department to commission the relevant services. Registered medical professionals can now terminate pregnancies lawfully.”
There is, as the Minister said, nothing in the legislation thus far that requires the independent commissioning of abortion services. Rather, they are made available through normal procedures.
Abortion is a costly business and profitable for those who provide the services. UK health reports that it costs £500 for the abortion pills you can take up to nine weeks of gestation, rising to about £800 for an abortion up to 18 weeks and about £2,000 after that. The Minister and his department are working hard to try to resolve the massive problems faced by our health system across the board.
If passed, these regulations would fundamentally alter the principles of the Good Friday/Belfast agreement, which created a sophisticated process for decision-making. As I state in this amendment, they
“make substantial constitutional changes via secondary legislation”.
They would allow the Secretary of State to bypass the Northern Ireland Assembly and the Executive Committee entirely. They are not in any way limited. However, the Northern Ireland Ministerial Code makes clear that the Northern Ireland Act ensures that significant and controversial issues are for the Executive to decide.
The regulations give broad, sweeping powers to the Secretary of State effectively to act as a Northern Ireland Minister without having been appointed as a Minister in accordance with the provisions of the Good Friday agreement and the Northern Ireland Act 1998 and without any accountability to the people of Northern Ireland. Effectively, they would allow the Secretary of State to take command away from the duly elected and appointed Minister of Health in the areas of abortion services and all the other areas mentioned in paragraphs 85 and 86 of the CEDAW report, from the Minister for Justice and, in education, the Minister of Education. The regulations would
give the Secretary of State all the powers of those Ministers to allocate resources and do anything a Minister or department could do, and to provide financial assistance for the purposes of ensuring that the CEDAW recommendations, which we brought into domestic law, are implemented.
If these regulations were passed, the Secretary of State would be able to take these decisions in isolation, having no regard to the impact of his decisions on the allocation of resources for neurology patients, cancer patients, orthopaedic patients, patients with cataracts and other eye problems, and patients in all other areas of medicine. The Minister of Health is in office and working to try to manage the impact of Covid on our broken health service. Undoubtedly, brave decisions need to be made to secure greater efficiencies and allow more people to be treated more quickly; however, there is no need for the drastic, unaccountable powers over elements of government that would be given to the Secretary of State were these regulations to be approved.
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The 2020 regulations, which allowed Westminster to introduce a completely new abortion framework to Northern Ireland after the Executive have returned in a devolved area of policy, overruled the devolution settlement. All subsequent attempts to expand this abortion regime are but a further bypassing of—indeed, an ignoring of—our constitutional arrangements, which are fundamentally vital to our peace. When both the 2020 and 2021 regulations were passed, the overwhelming majority of MPs representing Northern Ireland who take their seats in Westminster voted against them. In June 2020, in the Northern Ireland Assembly, 75 of the 90 MLAs from across the community voted to oppose the imposition of abortion legislation that discriminated against those with non-fatal disabilities, including Down syndrome, and an absolute majority specifically voted against the imposition of abortion regulations that would allow disability discrimination, yet this is what Westminster did in the 2021 regulations.
I have referred to the third report of the Secondary Legislation Scrutiny Committee. Regulation 2 of these regulations enables the Secretary of State to act in a way inconsistent with the Northern Ireland Act 1998. Is it right for your Lordships to pass regulations that do this—that drive a coach and horses through the delicate, finely balanced, democratic processes established by statute and by an international agreement? Surely not. As noted in the other place, this raises troubling questions about the delineation of power between, for example, the Minister of Health and the Secretary of State. For example, from whom do civil servants take instruction? Specifically, when can the Secretary of State countermand a direction of the Minister? Were the Secretary of State to overrule a decision made by the Northern Ireland Health Minister, what are the funding implications of such an act for the Northern Ireland budget?
Under these regulations, the Secretary of State will not be accountable for the public funds committed to implement any decision he makes. The regulations thus create ambiguity at the heart of the machinery of government and could thus lead to a serious lack of clarity and conflict between the departments of health
and other ministries and departments. As I have said and as the Minister acknowledged, abortion is now available in Northern Ireland. There were 2,794 abortions up to March 2022. The claim, therefore, that these regulations are needed and wanted is not sustainable. Under our constitutional arrangements, it is for the Northern Ireland Assembly and Executive to decide how to give effect to the Northern Ireland (Executive Formation etc) Act 2019 and the Abortion (Northern Ireland) Regulations 2020.
Any fundamental constitutional changes, such as the bypassing of the Northern Ireland Act 1998 and other relevant legislation, and the Good Friday/Belfast agreement, should be made only in primary legislation, where they can be scrutinised and debated fully, not via a regulation such as this. Your Lordships’ House should not approve these regulations. I beg to move.