My Lords, I speak in defence of the amendment in the name of the noble Baroness, Lady O’Loan, to which my name is attached. Since the commencement of this debate at around 4 pm today, I have received some 500-plus emails on this issue. I suspect that I am not unique in this respect. I suspect that others are finding the same response, and I think that this demonstrates that people are exercised, and there is real concern about what your Lordships’ House does this evening.
The way in which this Bill has been handled, the way in which scope has been dispensed with and the way in which huge issues have been inserted into a fast-track Bill designed for completely different purposes is deeply distressing to many people in Northern Ireland. When this Bill entered your Lordships’ House we expressed huge concerns about the way in which scope had been dispensed with. This problem has been massively compounded by the events tonight and the passing of the Barker amendment.
We are now looking at a situation where abortion is legal up to 28 weeks, while in GB the limit is 24, for any reason, including disability and gender, so we will have imposed on us a definition of viability that is 50 years out of date, a situation where abortion clinics will be able to set up in Northern Ireland from the end of October, and people in England will be able to travel to Northern Ireland to get abortions that are not available at home.
Does this House really want devolution? Do we want to give it any chance of success, or are we saying, through our decisions here tonight, that we would prefer that devolution did not exist? I suspect that that is the interpretation that many will put on it. It seems that this House wants direct rule. If the answer is no, then the case for Amendments 16 and 16A is simply overwhelming. How, in a context where we have 90 MLAs, can we change a key area of devolved policy over their heads when we have the opportunity to engage them?
Despite the fact that we are now in the school holiday season in Northern Ireland, with many people away, the letter of the noble Baroness, Lady O’Loan, has gathered some 19,000 signatures. That represents a UK population equivalent of more than half a million. That could not be overstated. I know that the noble Baroness, Lady O’Loan, has already made reference to that, but I make no apology for repeating it.
Of all the amendments that we discussed today, many of which are dominated by people who do not come from or represent Northern Ireland, let us be very clear, this amendment has more co-signatories than any other, thousands of them, and almost all come from Northern Ireland. It will be very important to reflect on the message that will be sent today if noble Lords vote against this straightforward amendment.
What will we be saying to the people of Northern Ireland? What would Parliament be saying to you if, by virtue of parliamentary arithmetic, it was able to impose something on your part of the UK, and despite being given the opportunity to give your elected representatives a say, chose not to do so?
I am aware that some say that engaging the Assembly is not relevant because it is not a matter of votes but of human rights. That argument, however, simply does not stand up to scrutiny. Of course, human rights are engaged, but the idea that they trump consideration and sweep away all others is ultimately a recipe for replacing parliaments with courts. The truth is, as the Supreme Court has made very clear, there is no general international human right to abortion, so the debate is not with me on that issue but with the Supreme Court.
Moreover, on CEDAW specifically, the expert legal opinion of Professor Mark Hill QC is very clear that the pontifications of the CEDAW committee are not binding and that the CEDAW convention does not even mention abortion and does not have standing to read it in. Lest anyone should say I do not care about human rights, I care about them passionately. I am not sticking my fingers in my ears and saying that there is not a human rights discussion to be had here. That is not the point I am making. The Supreme Court may issue a declaration of incompatibility on one very narrow aspect of our law as it relates to abortion and babies with very serious disabilities. In 2016, when the Assembly voted not to change the law in any way, it did so pending an inquiry on fatal foetal abnormality, which was published after suspension and recommended legal changes narrowly on this particular point.
The idea, however, that amendments passed tonight are the answer to that problem is absurd. These changes open up abortion for any reason up to 28 weeks. There is no case for that in any binding, proper, international legal instrument. In fact, the Supreme Court has indicated that Northern Ireland’s abortion law is compliant with international human rights obligations in relation to disability generally because there is no human right to abortion on the basis of disability. The idea, therefore, that Northern Ireland has to settle for this approach to abortion because of human rights is plainly wrong.
Some people might like to adopt an approach to human rights that says that this is necessary, but it is not mandatory. In this context, if we are serious about breathing confidence into devolution and respecting Northern Ireland, we must engage MLAs as proposed by these amendments. If the Supreme Court makes a binding declaration or if there are other human rights developments that necessitate a legal change—indeed, if there are any other developments that necessitate a change—the Northern Ireland Assembly is capable of making those changes.
In this context—particularly given the manner in which Northern Ireland has been denied constitutional due process hitherto in terms of the dispensing of scope and the insertion of major issues in a fast-track Bill on the decision to move Northern Ireland from having the most restricted abortion law in the British Isles to having the most liberal, such that it will make the laws of the home jurisdictions of those who press these changes on Northern Ireland look conservative—it is only right that, first, before any repeal of primary legislation is agreed MLAs are consulted, and if a majority agree, repeal can proceed; and, secondly, draft regulations are sent to MLAs and, if they agree, that again can be laid before Parliament.
I urge noble Lords to vote for devolution and to support these amendments.