My Lords, in speaking to the suite of amendments in the names of the noble Baroness, Lady Barker, and her co-signatories, I want to engage with two points. The first relates to due process and how we must understand these amendments in terms of the broader approach adopted by Westminster to the Bill. The second relates to the impact of the amendments themselves. In approaching the amendments, we must remember that the Bill has become distorted as a result of our dispensing with constitutional due process. That was seen in the dispensing of scope and the insertion into a Bill of matters that should have been the subject of Bills in their own right—a Bill that was subjected to fast-tracking and without regard to the recent vote of the Northern Ireland Assembly.
The issue of scope is raised in the amendments but, to understand its significance, we need some context. It is noticeable that, in the other place, two amendments were laid that sought to change the law on abortion. Proposed new Clause 5 sought to create a new regulation-making power for the Minister with respect to changing abortion law in Northern Ireland. Proposed new Clause 10 required the Secretary of State to use powers already invested in her through Section 26 of the Northern Ireland Act 1998 to make regulations on abortion with special regard to our international obligations. The clerks ruled that both amendments were outside the scope of the Bill and should not be selected because they sought to change the law on abortion. The Speaker, however, caused great shock by dispensing with this advice and selecting proposed new Clause 10, although he did not select proposed new Clause 5. Although proposed new Clause 10 was not in scope, proposed new Clause 5 was more seriously out of scope in that it would have created a new, independent, free-standing regulation-making power with respect to abortion.
Proposed new Clause 10—now Clause 9—is actually more out of scope than it need be on account of its flawed drafting. Properly drafted, it should require the Secretary of State to make orders rather than regulations. Those orders could have been used to address problems that the Member for Walthamstow articulated when making her speech; for example, regarding prosecutions. Subject to the identification of suitable powers, orders could require a much more restrictive approach to prosecutions or police involvement and, on the same basis, the making of subordinate legislation to give colour and detail to such matters as information, detailing the circumstances in which the termination of a pregnancy can occur. Amending Clause 9 to bring it within the scope of the Bill would also have the benefit of giving the Bill more integrity because it would sit much better with the abortion requirements in Clause 3(8), which require that a review of abortion law in Northern Ireland be conducted and that proposals for changes in the law be considered. This is entirely incongruous with any attempt to read Clause 9 as introducing a radical change in the law.
On previous occasions, the Minister has said that this House has been given an instruction by the other place. It seems quite difficult to say that the instruction was clear. The clearest message from the other place in relation to abortion pertains to Clause 3, which was passed unanimously in the other place, whereas Members were divided on proposed new Clause 10. In this context, it would be more respectful of the Commons to tidy up its amendment by replacing “regulations by statutory instrument” with “orders” because, first, the democratically elected House has placed this matter within Section 26 of the Northern Ireland Act 1998. Secondly, tidying up the amendment would enable it to address difficulties, expressed by the Member for Walthamstow in moving it, with respect to matters like the role of the police. Thirdly, doing so would move us back towards the scope of the Bill. Fourthly, it makes sense to read the provision in this way if we are to respect the strongest abortion message from the House, which came in the form of unanimous support for the abortion provisions in Clause 3, which call not for significant changes in abortion law at this moment but for a consideration of the options.
In contrast, the amendments in the name of the noble Baroness, Lady Barker, break with scope in a much more radical way—more so than proposed new Clause 5, which was not selected in the other place. The idea that we could accept an amendment that seeks, through this Bill—whose purpose pertains to setting the date of an election—directly to repeal Sections 58 and 59 of the Offences Against the Person Act is extraordinary. It makes a complete mockery of any sense of constitutional due process or a rules-based approach to lawmaking. We must be deeply concerned about the precedents that would flow from this and the havoc that it would create with the way we make law. The amendments in the name of the noble Baroness would remove from criminal law all remaining protections for the unborn until 28 weeks’ gestation. This would permit abortion for absolutely any reason, including any kind of disability or gender, up to 28 weeks. It is curious that, in 2019, we should be presented with a proposal for abortion law reform based on a 50 year-old understanding of viability. Babies now survive at 22 weeks, as the noble Baroness, Lady O’Loan, said. The amendment would propel Northern Ireland from having the most restrictive abortion law in the UK to having the most liberal, not only in the UK but in the whole of Europe.
That a place whose democratically elected Assembly voted in 2016 by a clear majority not to change abortion law in any way—a vote which was right across the whole political spectrum—pending an inquiry into abortion in relation to fatal foetal abnormality, should have a regime imposed on it by parliamentarians from other parts of the UK where the abortion law would be more conservative, leaves me lost for words. It would result in women who were 27 weeks pregnant travelling from England to Northern Ireland to get abortions in our Province because the laws protecting the rights of the unborn in England would be stronger than those in Northern Ireland.
If we are interested in listening to the other place, this does not represent their intentions at all. When scenarios such as these were set out in another place, they were described by the honourable Member for Walthamstow as “myths to be dispelled”. If we are interested in fostering trust between the different parts of our union, this is not the way to go. I earnestly implore noble Lords who believe in respecting constitutional due process to reject these amendments.