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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is not restored on Monday—hopefully it will be—and if Section 58 of the Offences Against the Person Act 1861 is repealed, the only remaining abortion-specific statute in place will be Section 25 of the Criminal Justice (Northern Ireland) Act 1945, which engages only with the last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
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
This focus on the NHS does not change the fact that on
“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
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
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
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
I am also deeply concerned that on
“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
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.