House of Lords committee raises concerns over N Ireland abortion regulations

A legislation scrutiny committee of the House of Lords last week published a report on the abortion regulations imposed on Northern Ireland by the British government, noting that the regulations are more expansive than were required by law.

Among the key criticisms in the Secondary Legislation Scrutiny Committee’s April 23 report was the six-week duration of public consultation on the proposed regulations. The committee includes members of the Conservative Party, Labour, and the Liberal Democrats, as well as crossbenchers.

“In our view, this is too short for so sensitive a topic, the committee wrote. “Added to which, it took place during the General Election period and in the run-up to Christmas, neither of which conforms with best practice. Of the over 21,000 responses received, 79% registered general opposition to any change to the established position in Northern Ireland.”

The committee received a number of submissions that “criticise the Government response to the consultation for failing to explain why such a strong level of objection has been overridden,” and which “assert that no attempt has been made to engage with them to address their objections or with the restored Northern Ireland Executive and that certain provisions … were not included in the consultation document.”

In addition, the Lords’ committee said that the regulations should not have been made so soon before a parliamentary recess: “While acknowledging that due to the current coronavirus crisis, Ministers have had much to occupy them, we find it regrettable that the Government chose to lay so controversial an instrument just as a recess started and, more importantly, so close to the implementation date set out in the 2019 Act, thereby denying Parliament an opportunity for scrutiny before the instrument came into effect.”

The Abortion (Northern Ireland) Regulations 2020, which came into force March 31, allow elective abortions up to 12 weeks of pregnancy; abortions up to 24 weeks in cases of risk to the mother’s physical or mental health; and abortion without time limit in cases of severe fetal impairment or fetal fetal abnormality.

Previously, abortion was legally permitted in the region only if the mother’s life was at risk or if there was a risk of long term or permanent, serious damage to her mental or physical health.

The new framework was adopted to implement Westminster’s Northern Ireland (Executive Formation etc) Act 2019, which decriminalised abortion in Northern Ireland and placed a moratorium on abortion-related criminal prosecutions, and obliged the UK government to create legal access to abortion in the region by March 31.

The NI EF Act required that the recommendations of a UN report on the Convention on the Elimination of All Forms of Discrimination against Women be implemented.

The legislative scrutiny committee said its report on the regulations sets out the key points made in submissions from members of the House of Commons, House of Lords, and the Northern Ireland Assembly, as well as churches and other organizations.

“This report also notes several instances where the Government’s administrative process for bringing these Regulations forward appears suboptimal,” it added, before drawing the regulations to the special attention of the House.

The committee noted that nearly all the submissions it received are critical of the regulations’ provision for conscientious objection.

Conscientious objection is allowed for direct participation in abortion, but not for ancillary, administrative, or managerial tasks associated with the procedure, because, according to the regulations, that “would have consequences on a practical level and would therefore undermine the effective provision of abortion services in Northern Ireland.”

The exclusion of those carrying out ancillary, administrative, or managerial tasks from conscientious objection may be “too narrow and does not adequately protect” the rights to religious or philosophical beliefs under the European Convention on Human Rights.

According to the committee, the Attorney General for Northern Ireland submitted that ancillary staff are unlawfully discriminated against because the Northern Ireland Act 1998 prevents the Assembly and the Secretary of State “from enacting any provision which discriminates against any person or class of person on the ground of religious belief or political opinion.”

The committee wrote that “Given the sensitivity of the issues around conscientious objection, the House may wish to ask the Minister to consider further the scope of the policy and how it will be interpreted.”

The report also discussed the regulation of abortion in cases of severe fetal impairment or fetal fetal abnormality.

Several submissions said the abortion of those with severe impairment is contrary to EU law because the UN Convention on the Rights of Persons with Disabilities “extends to those in the womb,” but that the region’s attorney general acknowledged that the NI EF Act required the implementation of such a regulation because of CEDAW.

“There, therefore, appears to be a question over which UN Convention should take priority,” the committee wrote.

However, the Northern Ireland Office holds that the UNCRPD is not a binding law, and added: “we do not agree that the provision extends protection to those in the womb.”

The legislative scrutiny committee noted that the regime chosen largely mirrors the services available in the rest of the UK. In the light of the overwhelmingly negative response to the consultation exercise, it would have been better if the reasons for the specific policy choices made, were explained in more detail in the EM, and the House may wish to press the Minister for further explanation.”

Other submissions noted that “severe disability” could be interpreted differently and could include cleft lip or Down syndrome, and that the CEDAW recommendation requires the provision of abortion for “severe foetal impairment”, while  not “perpetuating stereotypes towards persons with disabilities.”

“The House may wish to press the Minister about how these provisions will be interpreted,” the committee noted.

Some submissions also noted that because the baby’s sex can be identified at 10 weeks, and elective abortions are permitted up to 12 weeks, “there is a significant omission in the Regulations in that … they do not prevent abortion on the grounds of the foetus’s gender.”

The report concludes noting that “the NIO states that, where possible, this statutory framework mirrors the Abortion Act 1967 so that provision will be broadly consistent with the abortion services in the rest of the UK. The NIO was, however, obliged by law to implement the specific recommendations of the CEDAW Report which relate to Northern Ireland. This report has sought to expand on some of the Government’s policy choices and also to air the main issues drawn to our attention in submissions, to assist the House in the forthcoming debate.”

Right to Life UK spokesperson Catherine Robinson said April 28 that the committee “chosen to draw these regulations to the special attention of the House. The Committee has reported on a number of serious issues with the regulations.”

“MPs and Peers at Westminster must take on board these problems and vote against the regulations when they are brought before Parliament,” she added.

The regulations are due to be voted on before May 17.

David Alton, Baron Alton of Liverpool, commented April 25 that Northern Ireland’s abortion law “should have been decided in Northern Ireland not imposed by Westminster. Both Parliament and the Northern Ireland Office have shown great contempt for the people of Northern Ireland – and for normal constitutional and parliamentary good practice – in seeking to impose, by diktat, laws which in the rest of the UK have led to one child in the womb being aborted every three minutes.”

Lord Alton wrote that the Secondary Legislation Scrutiny Committee’s report highlights “that this issue needs to be reconsidered in Northern Ireland by the Assembly which is responsible for what the law and policy on this issue. Riding roughshod over the Assembly in this way shows contempt for devolution, power-sharing, proper political process, and the people of Northern Ireland.”

The bishops of Northern Ireland have encouraged members of Northern Ireland’s devolved legislature to debate the regulations, and, “insofar as they exceed the requirements of the Northern Ireland Act 2019 … to take steps to formulate new Regulations that will reflect more fully the will of a significant majority of the people in this jurisdiction to protect the lives of mothers and their unborn children.”
Northern Ireland rejected the Abortion Act 1967, which legalised abortion in England, Wales, and Scotland; and bills to legalise abortion in cases of fatal fetal abnormality, rape, or incest failed in the Northern Ireland Assembly in 2016.

Northern Irish women had been able to procure free National Health Service abortions in England, Scotland, and Wales since November 2017. They are allowed to travel to the rest of the UK to procure abortions during the coronavirus outbreak.

The amendment to the NI EF Act obliging the government to provide for legal abortion in Northern Ireland was introduced by Stella Creasy, a Labour MP who represents a London constituency.