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Northern Ireland (Executive Formation etc) Act 2019: Section 3(5) - Motion to Take Note

– in the House of Lords at 5:40 pm on 17th October 2019.

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Lord Duncan of Springbank:

Moved by Lord Duncan of Springbank

That this House takes note of the Report pursuant to section 3(5) of the Northern Ireland (Executive Formation etc) Act 2019, which was laid before this House on Monday 14 October.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Parliamentary Under-Secretary (Northern Ireland Office), Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy)

My Lords, on 9 October reports were published providing an update on progress on executive formation, the transparency of political donations, higher education and a Derry university, the presumption of non-prosecution, Troubles prosecution guidance and the abortion law review. Today’s report is a further update, in line with the obligations under the Northern Ireland (Executive Formation etc) Act 2019.

First, I take the opportunity to welcome the inclusion in the Queen’s Speech of the Bill on historical institutional abuse. I look forward to working with colleagues across the House to get that Bill passed so that we can begin to see redress for the victims in Northern Ireland. The people of Northern Ireland have gone for over 1,000 days without an Executive and Assembly. While efforts are being made to bring the parties back into that Executive, the current period for executive formation expires on Monday 21 October.

With regard to the obligations set out in the executive formation Act, should no Executive be formed before 21 October, this Government will be under a statutory duty to change the law in Northern Ireland on access to abortion services, same-sex marriage and opposite-sex civil partnerships and to introduce a new victims’ payment scheme. While every effort is being made to restore an Executive, appropriate steps are being taken to ensure that the Government will meet our obligations under the executive formation Act. In furtherance of that, an awareness campaign was launched last week to ensure that the people of Northern Ireland know how these changes to the law may affect them. Further information will continue to be provided in the coming weeks.

In the absence of a restored Assembly and Executive, the Northern Ireland Office has taken steps to ensure that the Government will fulfil our obligations on abortion. As part of the information campaign, on 7 October my department, working closely with the Department of Health in Northern Ireland, published guidance for healthcare professionals to provide clarity over the new state of the law and their duties and responsibilities. The guidance sets out the changes in law in this area from 22 October 2019 until a new regulatory framework is in place by the end of March 2020.

The immediate changes from 22 October, if the duty comes into effect, will be the repeal of Sections 58 and 59 of the Offences against the Person Act 1861 in Northern Ireland, meaning that no criminal charges can be brought under that Act against females who have an abortion or against qualified—I stress “qualified” —healthcare professionals or others who provide or assist in an abortion. There will also be a moratorium on current and future criminal investigations and prosecutions in this area.

The Government will introduce a new legal framework for abortion to come into force by 31 March 2020. It is worth noting that during this interim period, from 22 October 2019 until the new legal framework is in place, all other relevant laws relating to the termination of pregnancy will remain in place. This includes Section 25(1) of the Criminal Justice Act (Northern Ireland) 1945, which makes it a criminal offence for anyone “in good faith” to assist or wilfully act to,

“destroy the life of a child then capable of being born alive”,

except where the purpose is to preserve the life of the mother.

From 22 October, women resident in Northern Ireland can continue to access services in England and will now have all of the costs of the procedure, including their travel and, where needed, accommodation costs, met by the UK Government. Healthcare professionals will be lawfully able to refer patients to services in England by providing the details of the central booking service or directing them to information available on the GOV.UK website.

It is anticipated that access to abortion services will not be routinely available in Northern Ireland until the new legal framework is in place by 31 March 2020. The guidance notes that if healthcare professionals choose to offer an abortion service to women during the interim period within the bounds of the relevant laws, they should do so in line with their professional competence and guidance from their professional body.

The guidance that we have issued also notes the state of play relating to conscientious objection, and what to do in cases where patients have purchased abortion pills online. Copies of that guidance will be lodged in the Library, and I am happy to provide further information or any updated versions as we go forward. To be clear, we will take forward all the work necessary to implement the new regulations by 31 March 2020.

In addition to changing the law on access to abortion services if the Northern Ireland Executive are not restored by 21 October, Parliament has an obligation to extend same-sex marriage and opposite-sex civil partnerships to Northern Ireland by 13 January 2020, and to introduce a system of victims’ payments by the end of January 2020, to be in force by the end of May 2020. I beg to move.

Photo of Lord Morrow Lord Morrow DUP 5:45 pm, 17th October 2019

My Lords, I am sure the House is already aware that the necessary signatures have now been collected to recall the Northern Ireland Assembly on Monday. I hope I am not being premature, but I look forward to that. I think it will bring about changes in which this House should not dabble. The issues that the Minister has laid out before us today are all matters for the devolved Assembly. It is regrettable that that has not been observed and that the civil convention and all other conventions, including the much-heralded Belfast agreement, have all been kicked aside and ignored on this occasion. Hopefully, we will see some movement on this issue on Monday, now that the necessary signatures are in place to call the Assembly.

However, if the Northern Ireland Assembly is not restored on Monday, the legal framework that will obtain on Tuesday is one that no self-respecting jurisdiction could entertain for a single day, let alone five months. Why on earth would anyone remove one law five months before the new law is ready to take its place? It beggars belief. It is unnecessary and, in this case, downright dangerous. If the Assembly is not restored on Monday—hopefully it will be—and if Section 58 of the Offences Against the Person Act 1861 is repealed, the only remaining abortion-specific statute in place will be Section 25 of the Criminal Justice (Northern Ireland) Act 1945, which engages only with the last stage of pregnancy.

From Tuesday, if the Assembly is not restored, abortion will become legal for absolutely any reason whatever—including gender—until between 21 and 28 weeks’ gestation depending on when a child is capable of being born alive. This means that until this point the unborn child in Northern Ireland—uniquely in the United Kingdom—will have no legal protection whatever. On Tuesday, in Northern Ireland, an unborn dog subject to research at seven weeks’ gestation will have more rights in law than an unborn human being at 20 weeks’ gestation, thanks to the Animals (Scientific Procedures) Act 1986.

As a jurisdiction that has taken pride in the fact that the decision it made in 1967 means that 100,000 people are alive today who would otherwise not be, this is traumatic to say the least. It amounts to divesting us of an important part of our culture, our heritage and our people. If that was not enough, the legislation places the safety of Northern Ireland women in jeopardy in a way that, strangely, parliamentarians have not deemed appropriate for any other part of the UK. Repealing Section 58 without bothering to put anything in its place for five months is mind-boggling to say the least and has serious implications. Of course, the Government have sought to dismiss this in the report before us today by suggesting that the NHS will not significantly change how it deals with abortion until 31 March next year and that in the interim women should travel to England.

On that point, I pause to ask the Minister a rather important question—important to me, anyway. Who will pay for this travel? Who will pay for these abortions from 22 October? Will the bill be met from the Northern Ireland block grant or will it be paid by the UK Government? I look forward to hearing his reply.

This focus on the NHS does not change the fact that on 22 October it will become legal for anyone to provide an abortion in Northern Ireland, surgical or medical, until the point a child is capable of being born alive. It is not only the NHS that could provide abortions. On 22 October the door will be open wide for private abortion clinics. In this regard, I can cite an expert legal opinion from Ian Wise QC, who specialises in health and welfare legislation. He writes:

“It is important to recognise that because the 1967 Act does not apply to Northern Ireland and as there are currently no abortion clinics there, the detailed regulatory provisions governing abortion clinics in England and Wales are not in place in Northern Ireland. It is possible the regulations introduced on 31 March 2020 might address this, but that would not change the fact that between 22 October 2019 and 31 March 2020 it will be legal for private clinics to operate in Northern Ireland without the same level of protections for pregnant women currently in place in England and Wales. Important safeguards are for example found in Regulation 20 of the Care Quality Commission (Registration) Regulations 2009 which contains ‘Requirements relating to the termination of pregnancies’. Among these requirements is the obligation to ensure that two medical opinions are provided before an abortion is carried out, a restriction on terminations after the twentieth week of gestation and the requirement for detailed records of terminations to be kept. The absence of these requirements in Northern Ireland leads me to the view that there is a real possibility that the safeguards currently deemed necessary in England and Wales will not be in place in Northern Ireland in the likely event that abortion clinics are opened there, at least between 22 October 2019 and 31 March 2020. Whereas this lacuna would have ordinarily been expected to have been addressed by the devolved Stormont Assembly, in the absence of a functioning Assembly there is a danger that important safeguards for women seeking abortions are not put in place”.

The legislation relevant to the conduct of private clinics, the Independent Health Care Regulations (Northern Ireland) 2005, does not mention abortion and has no regulatory impact in any event if at least one medical professional is also employed by the NHS. In England, by contrast, where the safety of women is taken seriously, a clinic can provide abortions only if the Secretary of State has granted an abortion clinic licence and both the clinic and the procedure are regulated. Comparatively, however, the women of Northern Ireland will be much more exposed between 22 October and 31 March 2020. Of course, I do not know whether any clinics will open and, if they do, how many will, but I do know, first, that the women of Northern Ireland should not be exposed to the potential for significantly fewer protections than the women of England and, secondly, that that this should be a legal potential from Tuesday constitutes nothing less than a failure of governance.

Far more dramatically, of course, the repeal of Section 58 means that the provision of abortion becomes legal in any context, not just in the context of a private clinic but in all other potential contexts. There is absolutely no regulation in place whatever. This means that it will be possible to provide abortions in any context between 22 October 2019 and 31 March 2020. Thus, extraordinarily, backstreet abortions, with all the attendant safety concerns for women, will be de facto legal. The latest LucidTalk opinion poll of Northern Ireland adults shows that 60% of people are concerned about the safety implications of unregulated abortion for one day, never mind five months. Fewer than 30% disagree.

I noted with interest that during the equivalent debate yesterday in another place, when challenged about back-street abortions, the Minister, the honourable Member for Worcester said:

“Concerns have been raised about supposed backstreet abortions. We should be very clear that repealing criminal offences specifically relating to procuring abortion does not repeal other relevant criminal laws that exist to protect individuals. Medical procedures are carefully regulated and have to be carried out, as has been noted, on regulated premises with appropriate quality and care oversight. The guidance we published should help to support that”. [Official Report, 17/10/19; col. 418]

The implication of this statement is that backstreet abortions will not become legal on 22 October up until the point at which a child is capable of being born alive. That is certainly not the opinion of Ian Wise QC or that of David Lock QC, which other noble Lords will have seen. The legal reality is unquestionably that Section 9 will make back-street abortions legal in relation to pregnancies where the child is not capable of being born alive between 22 October and 31 March. It is wholly unacceptable that such a situation should obtain for a day, let alone for five months.

I am also deeply concerned that on 22 October, women will be exposed to potential exploitation. In recent years there have been a number of cases where men have placed abortifacients in the drink or food of pregnant women. These actions have led to prosecutions and convictions under Section 58. Some have suggested that, going forward, women in this situation will be protected by Section 24 of the Offences Against the Person Act, which is similar to Section 58 in that it also deals with noxious substances. While not suggesting that the protection offered by Section 24 is without relevance, the legal opinion of Ian Wise QC questions its comparable efficacy. He writes:

“It is important to note that sections 23, 24 and 58 of the 1861 Act all make the administration of a 'noxious thing’ a component of an offence. The context is however different, a difference that has been recognised by the courts. With respect to section 58 (which is of course specifically related to abortion) the courts have interpreted ‘noxious thing’ as being something that produces the effect mentioned in the statute, namely an abortion. The courts have however interpreted ‘noxious thing’ in relation to sections 23 and 24 as being related to the person to whom the ‘noxious thing’ is administered. For present purposes this means that a ‘noxious thing’ administered to a pregnant woman would have to cause harm to the woman to engage sections 23 and 24, the effect on the unborn child being irrelevant. The non-consensual administration of an anti-abortion pill to a pregnant woman, which causes an abortion but which does not harm the mother, which may have given rise to a criminal liability under section 58, may not give rise to such a liability under section 24”.

The irony of this is obvious. The movers of the amendment that became Section 9 told us that they were moving it because they wanted to advance the rights and interests of women. They have done the exact opposite when it comes to safety, certainly between 22 October and 31 March.

What troubles me in all this is the role of the Northern Ireland Office. Why did it not see the obvious dangers in Section 9? Why did it not say that the Government could not support a version of Section 9 that involved repealing the current law five months before the new law is in place? It would have been perfectly possible to draft Section 9 to mandate the development of new legislation and not to mandate the repeal of the current legislation until the new legislation is ready. Its failure to do this—especially as the Government are supposed to be neutral on abortion rather than protagonists for it—is extraordinary.

Although this problem is certainly the result of a gross failure of governance emanating from Westminster and Whitehall, the Northern Ireland Assembly could resolve the issue by restoring the Executive by Monday. I hope that will happen. I certainly use this opportunity to appeal to it to do so. I do not think that any Northern Ireland party, even those which support significant abortion law reform, likes this legislation, which is more permissive than that in any part of the British Isles or indeed the rest of Europe. but I think that everyone is equally concerned—or should be—about the implications of this legislation for women’s safety in the substandard regulation, or none, of private clinics, depending on whether a member of staff also works for the NHS, in the scope for unqualified people to provide abortions anywhere and in the scope for men to insert abortifacients.

In this regard I appeal to all parties, including Sinn Féin, to study carefully Ian Wise QC’s legal opinion and to restore the Assembly on Monday. The first step has been taken. I hope and pray that we do not have to stand here again and meddle in things that have been devolved to the Northern Ireland Assembly. Those who manufactured the Belfast agreement told us then that Northern Ireland would be in control of its own affairs but, alas, that is not the case.

Photo of Baroness Humphreys Baroness Humphreys Liberal Democrat Lords Spokesperson (Wales) 6:01 pm, 17th October 2019

My Lords, I thank the Minister for introducing the debate. I also express my thanks to officials for the comprehensive report that has been published. Since the previous reports were published, we have marked 1,000 days since the Executive at Stormont collapsed—1,000 days in which Northern Ireland has been without a government. This is shameful. During that time, we have seen the already often fractious relationship between the two biggest parties in Northern Ireland become even more damaged, due to a lack of respect and a seeming unwillingness to resolve the issues on the table. However, we on these Benches do not believe that the problems preventing the restoration of devolution are insurmountable. Indeed, the parties in Northern Ireland have come together in the past to resolve challenges far greater than those detailed on page 2 of the report. Perhaps the news today from the noble Lord, Lord Morrow, could point the way forward.

In the meantime, we have seen a worrying increase in levels of violence in Northern Ireland. In recent days we have seen a UDA mural unveiled in Bangor, with masked members of that paramilitary organisation openly posing beside it. A man was shot in a paramilitary-style gun attack in Newtownards. There have been around a dozen paramilitary gun attacks in Derry/Londonderry alone in the past 12 months, six of which occurred during August, September and October. A further security alert occurred on Monday night. There is absolutely no place for this kind of violence in a democratic society. The vast majority of people in the community in Northern Ireland want to make the transition away from paramilitaries and the associated intimidation and violence. We on these Benches remain committed to restoring devolved government as soon as possible.

The Secretary of State said earlier in the week that the parties would meet this week for further talks. Can the Minister confirm that such talks will include all the political parties in Northern Ireland, and give us a sense of how any discussions with or between the parties have gone since the previous report was debated in September? Having looked at the important policy issues of health, education, Northern Ireland’s economy and the need for political stability there, we urge the Government to ensure that there is real impetus to the discussions in Belfast to restore the Executive.

The section of the report relating to transparency of political donations states:

“There is a broader longstanding convention that changes to legislation directly affecting political parties are not made without wider discussion and consultation between parties and the Government”.

Can the Minister tell us whether any discussions have taken place with the political parties about changing the current law on the transparency of political donations to backdate it to January 2014? We continue to believe that the issue of consensus on this matter misses the point. If the political parties want secrecy around how they are funded, does that make it right or fair to the public? I want also to reiterate the point that parties were told by the Electoral Commission to inform every large donor after January 2014 that their details would eventually be published, so donors would have known this when they chose to donate.

I thank the Minister and his officials for the details included in the section of the report regarding abortion law reform. Clearly, a huge amount of work is being done to ensure that, if the Executive have not been restored by next week, there is guidance in place for healthcare professions.

Finally, I welcome the commitment in the report to updating the House in the next month.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 6:06 pm, 17th October 2019

My Lords, I take part in the debate because a gentleman in Northern Ireland asked me to do so. As your Lordships know, I was responsible for the judicial system in Northern Ireland when it was extremely difficult because the danger to life for people accepting office was very real. Personally, I am very concerned so far as Northern Ireland is concerned.

First, if the Assembly assembles on Monday, and if an Executive are in place on Tuesday, all the dangers in this business will disappear. I therefore emphasise as best as I can the responsibility resting on the Members of the Assembly, and on the Members who could constitute an Executive, to take their opportunity to act—otherwise, they pose a dangerous risk to the pregnant women of Northern Ireland. I will deal with this issue in a minute or two but I want to emphasise that point. Surely this should weigh with the people responsible so that, on Tuesday, we have a working Executive. Then, all the difficulty described in considerable detail by the noble Lord, Lord Morrow, will not, in fact, take place.

If all that does not happen, the danger is considerable because the 1861 Act, along with the relevant provisions, will be taken out of the law of Northern Ireland. So far as I know, no other law protects an embryo up to the time when it is sufficiently mature to be delivered in a way that will bring forth life. Therefore, the object of this provision, which was put into Section 9 of the Act, was to help the women of Northern Ireland. I cannot think of a greater danger to the women of Northern Ireland than allowing unrestricted abortion again. It is a very serious matter. It does not affect clinics and so on; as has been pointed out, no real protection is available through the clinics because they escape registration if one employee is employed by the National Health Service.

Apart from that law, there is no protection whatever for embryos up to the point of sufficient maturity for life. Therefore, the backstreet abortions that were the great burden of life before the Bill of the noble Lord, Lord Steel, will again be possible in Northern Ireland. I do not know, and I do not suppose many of your Lordships know, how many of these would happen, but the Government and those responsible for the management of government in Northern Ireland will carry the responsibility if that happens.

Therefore, I will do my utmost to persuade the Members of the Assembly to meet on Monday and constitute an Executive on Tuesday, because then all this difficulty will immediately disappear.

Photo of Baroness O'Loan Baroness O'Loan Crossbench 6:10 pm, 17th October 2019

My Lords, I will talk about abortion and the return of the Assembly. It is really important that we remember why we are debating this provision; it is because of the recommendations of the report produced by the CEDAW committee, which were deemed to be so imperative because of concern for women’s rights in Northern Ireland. When moving the provision that became Section 9, the honourable Member for Walthamstow in another place said that she wanted women in Northern Ireland to have the same rights as women in England and Wales.

We need to keep this in mind as we consider the Secretary of State’s report and what it says about the period between 22 October 2019 and 31 March 2020 if regulations are not laid before then. The report acknowledges that during this period the law will not be quite all that it should be and seeks to deal with that problem by saying that,

“there are no plans for additional services to be routinely available before 31 March”.

That is a curious statement. It seems to be predicated on the thoughts that if additional abortion services were made available they would be provided by the government -controlled National Health Service, and that the Government can prevent abortions being provided in the new legal void by simply instructing the NHS not to provide them.

There is a huge problem with that approach, which the noble Lord, Lord Morrow, and the noble and learned Lord, Lord Mackay, have referred to: that the NHS will not be the only body which will be able to provide abortions lawfully during this period. Unless the Assembly is restored, Sections 58 and 59 of the Offences against the Person Act will be repealed and only two laws engaging with abortion in Northern Ireland will remain. Under the Criminal Justice Act (Northern Ireland) 1945, as noble Lords have heard, abortions cannot take place lawfully from the time at which a child is capable of being born alive. The presumption in the Criminal Justice Act is that that is 28 weeks, but we know that babies now routinely survive at 22 weeks. It means that there will be a legislative void regarding abortions until that point.

Abortion procedures are dangerous, so responsible governance provides legislation regulating how they should be provided. In England, for example, every private abortion clinic must have a licence. The licence is not a generic clinic licence but a specific abortion clinic licence, and clinics have to perform to required operating standard procedures. Under Regulation 20 of the Care Quality Commission (Registration) Regulations 2009 there are requirements relating to the termination of pregnancies, including an obligation to ensure that two medical opinions are provided before an abortion is carried out, a restriction on who can carry out abortions after twenty weeks, because of the risks, and a requirement for detailed records to be kept.

The English legislation very properly recognises that the procedure of abortion requires abortion-specific regulation of both the premises and the procedure. In addition, under the Health and Social Care Act 2008 and associated regulations, any person who offers or undertakes abortion carries out a “regulated activity” and has to be registered with the CQC. Subject to limited exceptions, it is a criminal offence to carry out a regulated activity unless you are registered for the provision of that activity. So in England the practitioner, the location and the process are all subject to regulation. None of this regulation, designed to protect women and their unborn children, will apply to private abortion clinics in Northern Ireland which, unless the Assembly is restored, will be free to operate until regulations are laid.

From Tuesday, any provider of medical abortion services by a doctor at an independent clinic has to be registered under the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003. If it is registered, the clinic will be inspected and its services will be quality assured, but only as generic clinic services. No specific reference is made to standards for abortion. Moreover, this is the real danger: if the regulations say that if one medical professional who works for the National Health Service works in the clinic, it does not have to be regulated or assessed by the RQIA, so there is lots of scope for private abortion clinics employing one registered medical practitioner working for the NHS not to be subject to any regulation at all. Even worse, there will be no prohibition on anyone without medical qualifications providing abortion services in any context, and no prohibition on women accessing abortion as long as they give consent. I have to remind noble Lords that if there is a challenge as to whether a woman has given consent, it can be determined only after the event.

As the noble Lord, Lord Morrow, and the noble and learned Lord, Lord Mackay, referred to, we have seen legal opinions on the law in this area. David Lock, an eminent lawyer in the field of NHS and medical legislation and a former Labour MP, has written this:

“A person who was not a doctor (whether a nurse, other clinical professional or with no qualifications) who provides abortion services outside any form of clinic, agency or establishment does appear to not need to be registered under the 2003 Order. Further, there does not appear to be any other regulatory regime that will apply to such a person or any law which means that such a person will necessarily be acting unlawfully”.

He concedes that other criminal offences may be committed depending on the precise facts. He also says:

“In general, under the common law it is lawful to do anything unless there is a specific legal prohibition against doing that thing. Thus an individual is entitled to carry out any form of activity unless the activity is regulated by law and the regulatory framework imposes restrictions on the way in which the activity can be undertaken”.

There will be no such regulation and no framework for Northern Ireland until we see what the regulations say, possibly as late as 31 March 2020. David Lock goes on to say:

“It follows that an unintended consequence of section 9 of the 2019 Act may be the possible return of unregulated ‘backstreet abortion’”.

I know that this was discussed yesterday in the other place and I heard the Minister, but I think that the other place was labouring under a misunderstanding about the actual state of the law in Northern Ireland after 22 October if the Assembly and Executive are not formed. That is why I have set out the law as clearly as I can. This point was also raised last month by the Northern Ireland Human Rights Commission when it referred to the fact that the,

“likelihood of individuals resorting to potentially unsafe practices remains while prosecutions under the criminal law have been removed and the healthcare process has not been established”.

If even one mother or one baby suffers as a consequence of this legislative void, this Parliament will be responsible, as will be those who do not return to the Assembly. That is a very sombre thought.

In addition, the new guidelines issued by the Secretary of State state that,

“there is no expectation that general practitioners (GPs) will prescribe medication for early medical abortion”.

Such medication should be taken only up to nine weeks and six days of pregnancy. In England and Wales, this medication is available from private services because GPs do not provide abortion services. David Lock QC has also advised that,

“there is no legal bar on a GP issuing a prescription for medication for an abortion (either privately or as part of NHS funded care). These are ‘prescription only medicines’ which a GP would be fully entitled to prescribe for his or her patient if the GP considered that it was clinically appropriate to do so”.

So there will be no legal bar on women asking GPs for medication. The Government’s expectation therefore seems irrelevant.

What then of the rights of conscientious objection, which are required to give effect to the protection of human rights of medical practitioners? A couple of weeks ago, over 800 healthcare professionals wrote to the Secretary of State to oppose the imposition of this new regime, saying,

“our consciences demand that we not be silent”.

The medics say that they,

“wish to make known our opposition to the imminent introduction of abortion in Northern Ireland”,

and that their,

“concern throughout is for pregnant mothers and their unborn children”.

The only reference to conscience in the recent report by the Secretary of State is that current UK law permits conscientious objection only in “hands-on situations”. This is entirely inadequate—there is no legal definition of hands-on situations. However, it is also inadequate to suggest, as the report does, that medical practitioners should consult the GMC and other professional bodies. The reality is that that does not provide any guidance to medical practitioners during the lacuna period from 22 October. Of course, it is not possible to provide such guidance in the absence of regulation. The UK professional guidance is predicated upon compliance with existing law. That law does not apply here.

As the noble Lord, Lord Morrow, said, the situation is entirely unnecessary; government could have behaved entirely differently. When Back-Benchers come up with proposals that have dangerous unintended consequences —I am absolutely sure that neither the Minister here, the Secretary of State nor anybody else intended that this situation would prevail—it is the job of departments and Ministers to point out those dangerous unintended consequences. It is also their job to point out that the dangers can be avoided with a proper understanding of the imperative—or lack of it, as I would argue—attached to the findings of the UN committees. Government should have insisted that our existing legislation should not be repealed until such a time as there was new legislation to take its place.

With that in mind, I introduced my Northern Ireland (Executive Formation etc) Act 2019 (Amendment) Bill the day after the Act received Royal Assent to change the date of the repeal of Sections 58 and 59 to the time when the new regulations are introduced, thereby doing away with this dangerous five-month period, and seeking the consent of a majority of MLAs to any new proposed regulations tabled under the Act. In this sorry, sad, dangerous situation, the Secretary of State must do everything he can between now and Monday to get the Assembly Executive up and running by Monday. The political parties in Northern Ireland are under an even greater obligation to do so.

As we speak, some 26,100 people have signed my petition to the Secretary of State and to MLAs calling for the recall of the Northern Ireland Assembly and for it to become operational. A petition by unionist MLAs has been laid for the recall of the Assembly on Monday, as the noble Lord, Lord Morrow, informed the House. The Assembly will now be recalled on Monday and for the first time in over 1,000 days, at this time of extreme urgency—not just because of the abortion provisions but because of Brexit and all the other things that affect Northern Ireland so terribly—the Assembly will gather. There are people who say this is a political stunt, but the people of Northern Ireland have been calling for the Assembly to reconvene for years. This is no political stunt. As I said in my letter to the Secretary of State on Monday:

“We need our own legislature to deal with matters relating to Brexit, to all the numerous and urgent problems which exist in Northern Ireland, and most of all to deal with the difficulty of the situation with regard to abortion if the assembly and executive are not reformed”.

I appeal to all those who do not share my views on this matter to study the David Lock and Ian Wise opinions to which the noble Lord, Lord Morrow, referred, and to recognise the hazards to the safety of women and their unborn children, of which I have spoken tonight, and so to restore the Executive. An opinion poll just released by LucidTalk shows that 60% of people in Northern Ireland are concerned about the prospect of unregulated abortion for one day, let alone five months.

I cannot express too strongly the fact that the 26,000-plus people who signed the petition come from all parts, all parties and all communities in Northern Ireland and represent so many nationalities. I have watched the signatures rolling in. I can see the different nations of the world represented among the signatories. I can see people I know and do not know, but because of the way we work in Northern Ireland, I know that they come from all parts of the community.

I say to Northern Ireland’s elected politicians: respond to this opportunity; respond to the call to appoint an Executive and get back into government. I know that only our politicians can do this. We, the people, have waited long enough.

Photo of Lord Bates Lord Bates Conservative 6:25 pm, 17th October 2019

My Lords, the final few sentences of the remarks of the noble Baroness, Lady O’Loan, were exactly what I sought to say. As was stated eloquently by the noble Baroness, Lady Humphreys, I wanted to express a heartfelt desire for those vital institutions in Northern Ireland to be restored and to function. My noble friend, who is doing incredible work in Northern Ireland as a Minister, said in this House on 9 September:

“Without an Executive, the people of Northern Ireland have seen the quality of their public services decline, and decisions that affect their day-to-day lives kicked into the long grass. The people of Northern Ireland deserve better”.—[Official Report, 9/9/19; col. 1356.]

I was reminded of that when there was a march on Sunday to mark 1,000 days since the Assembly had sat. I read a number of speeches from that day. One was from Nichola Corner, the sister of Lyra McKee. She said:

“Our elected politicians continue to let their differences be barriers to progress, peace and change and have transformed the word concession into a dirty word and use it to refuse to honour the will of the people and work together”.

I read of another group called Our Future Our Choice—a group of young people attending the march. It said:

“The children of the peace process deserve better than this. We have been left without oversight, without decision making and without leadership”.

I was in Belfast on Good Friday this year, as my wife and I began a walk in search of common ground over Brexit, believe it or not—a long time ago, but still relevant, I think. We were beginning a walk from Belfast to Brussels and chose Belfast to start because of the Good Friday agreement. We believed that that was an occasion when, through political courage, people stood up and came together, rising above their differences and reaching out to each other to bring about peace.

As we began that walk from Belfast, news was coming through of the murder of Lyra McKee, which was of course a very significant moment. I remember when Arlene Foster went to the Creggan in Londonderry, stood side by side with Sinn Féin and said: “Your pain is our pain”. It was an incredible moment. The president of Sinn Féin responded by saying that these people were not going to drag Northern Ireland back into the dark days of violence, and she recommitted herself to the peace process.

A week later there was the incredible service in St Anne’s Cathedral, a memorial for Lyra McKee, in which Father Martin Magill asked why in the name of God it took the death of a brilliant 29 year-old woman to bring them all together under one roof. At the end of that powerful address, the entire cathedral, including the leaders of all the political parties, stood up to applaud that sentiment.

And yet—as I was going to say—still we wait and still we hope that this will be brought about. I hope and pray that the reports we are hearing of a possible restoration of the Assembly and formation of an Executive are true, not just for those of us in this place but for all the people of Northern Ireland and for the peace process, in which so many in this House have invested time, treasure and hope.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat 6:30 pm, 17th October 2019

My Lords, I am grateful for the opportunity to speak briefly in the gap. I declare my interest as a medical graduate from Northern Ireland and formerly a medical practitioner in Northern Ireland.

Lest the House be in any way misled, we should be clear that there is no prospect of the resumption of an Executive at the beginning of next week. The recall of the Assembly has been at the request of unionist Members only and an Executive cannot be formed on that basis. Let us be clear: it is not going to happen.

I refer to the issue of the Ulster University graduate medical school in Derry/Londonderry. I have three brief points. First, let us not forget that the decision to locate the University of Ulster’s main campus at Coleraine is still a sore point for many people in Derry/Londonderry. It was one of the great aggravations of the 1960s and it has not gone away. Whether the Ulster University graduate medical school is established is not a neutral question. It is still a painful question that refers back to the 1960s decision, which was a bad decision.

Secondly, it is not purely an education and health decision, as implied by the report. It is also an economic decision, because one value in having graduate entry for medical students is that it attracts people from other parts of the world who are prepared to come and pay substantial fees. For example, many of the young psychiatrists I see now from the United States of America as part of their training have graduated from Caribbean medical schools and completed their training in the United States. Many Caribbean islands with good medical training facilities, from the University of the West Indies, for example, are able to do very well, so this is an economic question as well.

Thirdly, it is not possible simply to turn on a tap for a medical school. Graduate entry occurs at only one time of the year. If an opportunity for graduates to come in next year or the year after is lost, it will be at least another year or more before there is another opportunity. Since this has been waiting for some time, the kind of academics who were prepared to set up a school will move on if it keeps being delayed. I appeal to the Minister: sadly, in the likelihood that we will not have a devolved Executive, can this issue not be looked at again and pushed for? It is not a matter of dispute in Northern Ireland. People right across the community, even at Queen’s University, want to see this development. Can it not be looked at and implemented soon?

Photo of Baroness O'Loan Baroness O'Loan Crossbench

Is the noble Lord aware that nationalists have indicated that they will attend Stormont on Monday. I do not know whether there will be an Executive, but I do know that nationalist politicians will be there and I encourage every politician to be there.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

I am aware that many may attend. That is not the point. The issues being referred to cannot be decided by the Assembly in the absence of an Executive. Anybody who knows about the politics of Northern Ireland—and the noble Baroness does—knows perfectly well that this is not yet the time for some people to participate in the Executive. That is political reality and it is ill advised for the Chamber to feel that another possibility for next Tuesday is a real one.

Photo of Lord Caine Lord Caine Conservative

Before an Executive can be formed, the first item of business is the election of a Speaker, as the noble Lord well knows, having served in that position himself. There is absolutely no prospect on Monday of a Speaker being elected.

Photo of Lord Murphy of Torfaen Lord Murphy of Torfaen Labour 6:34 pm, 17th October 2019

More is the pity—of course a Speaker should be elected. We should have an Assembly and an Executive up and running in Belfast, but I agree with the noble Lord, Lord Alderdice, whose experience in these matters is enormous, that it is not going to happen. However, this short debate is important to deal with the issues in the current Act—and to do so at the time we are debating it.

I have huge sympathy for noble Lords who have spoken about the issues that should be devolved, whether the sensitive issues of abortion and equal marriage, victims’ pensions or the university in Derry. These are all hugely important, of course, and people have different views on them, but I did not spend three years of my time chairing the talks on strand one of the Good Friday agreement, setting up the Assembly and Executive, not to agree with devolution. These things should be for the devolved Assembly and Executive, and the noble and learned Lord, Lord Mackay, rightly said that is the only solution to this. It is a great pity that they have not been set up before today, because those issues would then be before the Assembly and Executive in Belfast—but it has not happened.

Looking at the events of the past 24 hours, I suppose one thing has changed with regard to how the Government deal with Northern Ireland. It was good to see the Taoiseach and Prime Minister in Cheshire and to hear that they talked on the telephone last night and that relations between Ireland and the United Kingdom are beginning to get better. But one of the tragedies of the past 1,000 days is that the British and Irish Governments could have come together more frequently, maybe delegated by the other 26 members of the European Union. I am convinced that had that happened, the two Governments would have been able to deal with the detail currently being dealt with and the talks would have been more serious than they were. The talks should have had an independent chair and involved all parties equally, and the two Prime Ministers should have bothered to go to Belfast more, because frankly it was farcical when they did. They made only day trips to Belfast, and you just cannot produce results like that. However, I hope they have learned how you can do things from the last week.

I make no comment on the deal other than this. If it eventually goes through, it is partly a result of the Irish and British Governments having actually started talking to each other properly. They are the co-guarantors of the Good Friday/Belfast agreement. It is an international treaty lodged with the United Nations and should have been treated as such. We have had 1,000 wasted days with no shape, no structure and no form to the talks, but I am optimistic about the present Secretary of State. He is working extremely hard with his counterpart in Dublin and the political parties in Northern Ireland—which, at the end of the day, are of course key to all this.

I hope Sinn Féin decides that it will engage in proper discussions with the DUP on setting up the Assembly and Executive. I know the DUP plays a hugely important role in all these matters, but I remind your Lordships that it is only one side of the story. In all the arguments about consent we have listened and are currently listening to, both sides in Northern Ireland have to agree. The principle of consent—that you had to get them to agree—was the genius of the Good Friday agreement. I hope that is embedded in any deal.

There is some optimism about the restoration of the Assembly and Executive. If they are not restored, we will come back to this House time and again to deal with issues such as this, which should properly be matters for those elected in Northern Ireland. I still fear that the Good Friday/Belfast agreement has been seriously dented by the events of the past two or three years. It is a matter of great sorrow to me personally but, much more significantly, of great sadness to the people of Northern Ireland, who, quite frankly, deserve better.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Parliamentary Under-Secretary (Northern Ireland Office), Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy) 6:39 pm, 17th October 2019

My Lords, I begin where I think we need to begin. Everyone in this House are of the same view that we need to restore an Executive in Northern Ireland. There is no doubt about the importance of that, not just going forward, but for what could have been achieved, which we will never know. However, my right honourable friend the Secretary of State for Northern Ireland has been working tirelessly, and I am pleased that the noble Lord, Lord Murphy, has recognised that. He has been straining every sinew to try to bring the two principal parties and all the other parties together. In response to the question asked by the noble Baroness, Lady Humphreys, we have made and will make every effort to bring the five parties together to move that forward.

The challenge, however, is that the obligations of the Northern Ireland (Executive Formation etc) Act fall on the shoulders of the United Kingdom Government early next week. While the Assembly may seek to convene—I do not doubt it will do so—and while I do not doubt that there may be a broader base of attendance than might have been expected, it is unlikely to be able to deliver on those issues that some noble Lords have wished it to do this evening for the reasons raised by my noble friend Lord Caine and the noble Lord, Lord Alderdice.

I say that with some regret because we all recognise the value of that. As has been pointed out by the noble Lord, Lord Murphy, this is a time when we would have valued that information. But I do not believe that, unless we make some serious progress on Monday, we will face anything other than the reality that the United Kingdom Government will take forward their obligations. That is how the Northern Ireland (Executive Formation etc) Act was formed. We did so recognising that, once we had taken on the obligation, we would see it through to its fulfilment. Whether that is deemed right or wrong, it is the law of the land and is exactly what we will do.

I shall take some of the points in reverse, as that may be easier. In response to the question from the noble Baroness, Lady Humphreys, about donations, the issue is that none of the parties has expressed any change in its view about backdating. The sister party of the Liberal Democrats here, the Alliance Party, has pushed strongest and most consistently for backdating, but other parties, notably the DUP and UUP, were keen for this to be a point going forward. Some of the other parties did not express a view on this, but none has changed its view. I am happy to write again to the noble Baroness with more details, but in the recognition that we need to bring this area to rest. I will write on that point.

My noble friend Lord Bates kindly brought the issue back to where we need to focus, for we are here today doing something that should be done elsewhere. As a number of noble Lords have observed, we have seen a deterioration of the situation in Northern Ireland, which is much to be regretted. The political vacuum that exists now will continue to be a problem. What we are doing here today is trying to address certain issues, in but a small moment in time. In truth, until an Executive is formed and the devolution situation works, we will not have adequate governance in Northern Ireland.

I hope that the deal spoken of by the noble Lord, Lord Murphy, delivers for Northern Ireland. I hope that that happening will take away one of the principal obstacles to the parties coming back together. We should be under no illusion that Brexit has been a factor in the parties’ approach to the situation. It would be remiss of me not to point that out. I therefore hope that a deal will remove one of the stumbling blocks—not the only one—and allow those parties to return to government, but, at present, we look forward to that, rather than being certain that it will happen.

I now turn to the conspicuous and very serious issue that has been raised by a number of noble Lords. That is abortion. I state at the outset that I believe this matter should have been taken forward by a devolved Executive. I am happy to put that on record once again. It will not be so; it will be taken forward by us. We have debated this more than once, and I want to correct some of the statements that I believe have been made in error.

The five-month period we talked about is the most challenging aspect of this. At the outset, we need to recognise that abortions in Northern Ireland can take place only in a registered clinic. Some have said that this can simply be circumvented if there is but one NHS employee. That is not true. The clinic still has to be registered and the NHS employee taking part needs the permission of the NHS commissioners. That has to be done formally. Therefore, this is not carte blanche for people to create an opportunity in secret, whether in a front street, a middle street or a back street. It was not designed to be that and it will not be that.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

Perhaps when the Minister gets away from the House he could look again at Regulation 5.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Parliamentary Under-Secretary (Northern Ireland Office), Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy)

I am very happy to state categorically that in any clinic, even if it has one NHS employee, that employee must have the permission of the NHS commissioners. I will write on this point and lodge the letter in the Library to make it very clear that we eliminate this as an issue that might percolate back to Northern Ireland in a nefarious and bad fashion. Equally, it is important to stress that, should there be an attempt by any private clinic to seek registration, it will not be a simple or quick procedure. Certain obligations must be met, and they will be met very carefully during this period. It is important to stress that anyone who seeks to open a clinic that is not registered or that operates without due diligence will be subject to the criminal law, and that law will be broken if they do that. It is important to appreciate that in Northern Ireland.

Further, any independent practitioner who might wish to set up a practice must register with the Care Quality Commission. Therefore, again, it is not simply a question of wish fulfilment; they must undertake legal obligatory steps. The premises would need to be established and investigated, and it would be necessary to ensure that they met those criteria. I note that the period that we are talking of is five months. I also note that almost anything involving bureaucracy does not get resolved in five months.

It is also important to set out very clearly that guidance has already been issued by the GMC and the royal colleges to the practitioners in Northern Ireland so that they are aware that, should we be unable to form an Executive, those are the conditions under which they will operate. Any noble Lord who wishes to see those conditions can consult the Library or go to GOV.UK. We have been very clear and transparent, ensuring that they are clear.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

I am very sorry and I do not intend to interrupt the Minister repeatedly but I would like to ask whether he accepts that the GMC guidance is predicated upon the Abortion Act 1967 and the obligations of doctors under that Act. In fact, the GMC is not a regulatory body or a law enforcement body, and practitioners in Northern Ireland cannot be asked to be bound by legislation that does not apply or guidance relating to legislation that does not apply.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Parliamentary Under-Secretary (Northern Ireland Office), Parliamentary Under-Secretary (Department for Business, Energy and Industrial Strategy)

To be very clear and to correct that, it is not the GMC’s guidance; it is our guidance. It is the Government’s guidance that we have asked it to pass on to ensure that practitioners are fully informed about and entirely aware of their obligations. It is fully transparent. If any noble Lord wishes to see it, they can consult the website and it is also in the Library.

The noble Baroness raised a number of issues, particularly with regard to the conscientiousness element. I note that a number of practitioners may well have written on this matter. That is important, but I stress categorically that they are entitled to exercise their conscience in this matter and will not be obliged to act against it unless they find themselves in a situation in which the life of the female is endangered. The professional obligations will kick in at that point and they will be obliged to save the life of the female. However, it is important to stress that nobody will be obliged to act against their conscience. Importantly, from 22 October onwards, we will be consulting very broadly to make sure that we get the language absolutely correct. We have no desire to place anybody in the invidious position of having to act against what they believe, so we will make sure that there are consultations. We are looking not just at the medical professions or professional bodies but at the religious groups that might be affected.

I listened with some interest to the notion of noxious substances, raised by the noble Lord, Lord Morrow, and the deliberate attempt to abort a foetus by a dominant male administering the process. I note in saying that there are a number of laws in Northern Ireland that would be absolutely applicable should an individual seek to abuse the body of another person in this regard. They carry with them very significant sentences. At present, the law has not been used in this regard, but it certainly could be. There would be no question that somebody could, with some sort of lightness of touch, escape from criminal justice in this regard. I would like to make sure that nobody in Northern Ireland is of the view that there may be secret poisonings that could somehow go both unreported and unaddressed. That would be the wrong thing to take from this debate here today.

I recognise that there are going to be challenges in each of these areas, but I want it to be clear that during this particular period there is no carte blanche but rather a recognised period of necessity until we are able fully to frame the law as needs be—the law that we wish to see that will come in in March. The laws now in existence will protect the mother from poison or other abuse of that nature. There are existing laws that protect the viability of a foetus that could be born alive. Although we might argue where that particular window might rest—it is between 22 and 28 weeks—it will be on a case-by-case basis, determined not by us here or others, but by the practitioner who is involved in the delivery of that medical situation. That is as it should be.

This is not a legal free-for-all. It is not an opportunity for those in Northern Ireland to create a whole new sector of abortion clinics. It is a recognition that in Northern Ireland, there are challenges because of the situation over the years with the abortion law. As I said before, I would have much preferred this to have been done elsewhere, but it will not be so. It is therefore important for us to ensure that we do all we can to ensure that during that period, the health and well-being of females is paramount. That is our guiding light and that is what we are seeking to do.

We do not believe that during that period there will be a fully-fledged abortion regime put in place because of the challenges that will exist within that, not least just trying to make it so. That is why we are making sure that those who wish to seek an abortion are able to do so in England, and that all costs will be met; and that advice and information can be given by medical professionals without fear or recourse to the criminal law to females to make that decision for themselves. They can, at that point, come to Great Britain to undertake that particular medical procedure.

However, the issue that we need to be more conscious of is the notion of people buying medicines online. The difficulty there is that it is not just for abortion purposes: more widely, there is a criminal offence of individuals selling those particular medicines unprescribed. Again, should a female find herself in a situation where she is suffering because of this, she can now go to a medical professional and seek the necessary help to ensure that she is safe and well. That is important. We need, as a Government, to consider how medicines are now being marketed or purchased online, because it is a matter where health is much more difficult to ensure when we are unable to be sure what the medicines themselves are. That is even if they are what they claim to be, let alone when they are not what they claim to be.

I realise that this is not where any of us would wish to be, but it is important for me to stress that going forward, the most important issue will be the health and well-being of the females of Northern Ireland. We will do all we can to ensure that that is so, and we will make sure that where we can offer that guidance, it will be understood by those who now will be able to take forward their own approach to the question of abortion. After March, there will be a fully-fledged regime in Northern Ireland. I hope that this period will give us the opportunity to ensure that it is fit for purpose and carefully constructed, and that it recognises the challenges that we have witnessed in the debate this evening and, more widely, the question of people’s own conscience and views.

The important thing today, however, is to recognise that we need an Executive in Northern Ireland. On that we can all be absolutely clear. I can assure noble Lords that I do not want to be back doing this again. The important thing for us all right now, however, is to hope that the deal itself might well bring a new opening and a new opportunity for Northern Ireland; and that the parties themselves recognise that there is a way forward and that they can begin to work again in the interest of the people of Northern Ireland. They are better fit and able than we are to do that. On that basis I would like to close my remarks.

Motion agreed.

House adjourned at 6.54 pm.