Fifty First Report Contents

Instruments drawn to the special attention of the House

Adoption and Children (Coronavirus) (Amendment) Regulations 2021 (SI 2021/261)

Date laid: 9 March 2021

Parliamentary procedure: negative

This instrument extends by six months until 30 September 2021 several relaxations of statutory requirements in relation to children’s social care which were introduced earlier during the pandemic. These relaxations allow, for example, virtual visits of social workers to looked after children and meetings of children and young people in children’s homes with families and social workers to be virtual rather than face-to-face. While we note the Department’s consultation with the sector and recognise the need for flexibility at this time, we are concerned about the length of this further extension, especially as children have now returned to school. We consider that a three-month extension may have been more appropriate, given the vulnerability of the children affected and the benefits of face-to-face contact, especially over the summer holidays. The House may wish to press the Minister for an assurance that the Department will make every effort to bring to an end the temporary relaxations and return to regular face-to-face visits and meetings at the earliest opportunity.

The instrument is drawn to the special attention of the House on the ground that it is politically or legally important and gives rise to issues of public policy likely to be of interest to the House.

1.These Regulations have been laid by the Department for Education (DfE) with an Explanatory Memorandum (EM). They extend by six months several relaxations of statutory requirements in relation to children’s social care which were introduced earlier during the pandemic.

Previous measures

2.DfE introduced extensive temporary changes to the statutory requirements that apply to adoption and fostering services and children’s residential care and the responsibilities of local authorities in these areas during the early stages of the pandemic1 to help the sector to deliver care services. At the time, we raised concerns about the extent of these changes and that the Children’s Commissioner had not been consulted. The first instrument and the majority of temporary changes lapsed on 25 September 2020; the Department introduced a second instrument2 which extended some of the changes until 31 March 2021.

The key measures extended by this instrument

3.This third instrument extends until 30 September the temporary measures introduced by the second instrument. The key measures that are extended include the following:

4.DfE explains that the Department consulted on the further extension of these measures and says that it had discussions with key stakeholders, including children’s rights organisations, the Children’s Commissioner and the Association of Directors of Children’s Social Care as well as with children and young people’s forums via local authorities. According to DfE, the majority of stakeholders agreed that the temporary measures should be extended further.3 The Department will continue to monitor the use of these measures and has updated its guidance4 and published a Children’s Rights Impact Assessment5 as well as an Equality Impact Assessment.6

5.While we note the Department’s consultation with the sector and recognise the need for flexibility at this time, we are concerned about the length of this further extension, especially as children have now returned to school. We consider that a three-month extension may have been more appropriate, given the vulnerability of the children affected and the benefits of face-to-face contact, especially over the summer holidays. The House may wish to press the Minister for an assurance that the Department will make every effort to bring to an end the temporary measures and return to regular face-to-face visits and meetings at the earliest opportunity.

Abortion (Northern Ireland) Regulations 2021 (SI 2021/365)

Date made: 22 March 2021

Parliamentary procedure: affirmative

These Regulations are supplementary to the 2020 Regulations and our earlier reports on those Regulations reflect some of the substantive issues associated with the extension of abortion services in Northern Ireland. The 2021 Regulations do not change the intention or content of the 2020 Regulations. They provide a mechanism to enforce their implementation which, in turn, raises complex legal and constitutional questions. We regard it as poor practice to bring new policy into effect when the House is not sitting, and using a procedure which prevents discussion before the legislation takes effect. It is particularly inappropriate when that policy is likely to be controversial, and the House may wish to ask the Minister to explain that decision.

We draw these Regulations to the special attention of the House on the ground that they are politically and legally important and give rise to issues of public policy likely to be of interest to the House.

Background: the 2020 Regulations

6.The Abortion (Northern Ireland) Regulations 2020 (“the original Regulations”) extended provision for abortion in Northern Ireland. They were made to fulfil section 9 of the Northern Ireland (Executive Formation etc.) Act 2019 (“the NIEF Act”) which imposed a statutory duty on the Secretary of State to implement, by 31 March 2020, the recommendations contained in paragraphs 85 and 86 of a UN Report made under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).7

7.In our 11th Report of this session, we drew the original Regulations to the special attention of the House. 8 We had received a number of submissions and in our report we set out the points raised in them with additional material from the Northern Ireland Office (NIO) to supplement that contained in the Explanatory Memorandum (EM).

8.The original Regulations were laid at the start of the pandemic period. Because, at that time, the House did not have the ability to vote remotely, the Government revoked the original Regulations and replaced them with the Abortion (Northern Ireland) (No. 2) Regulations 2020 (“the No. 2 Regulations”). They were almost identical to the original Regulations and in effect extended the approval period until the capacity to vote remotely was in place. In our 16th Report of this session, we confirmed that the comments made in our 11th Report applied equally to the No 2 Regulations. 9 We also drew attention to a number of further submissions, many reacting to the additional material from the NIO published in our 11th Report.

Reason for the 2021 Regulations

9.The Abortion (Northern Ireland) Regulations 2021 (“the 2021 Regulations”) were laid by the NIO on 23 March accompanied by an EM. They confer power on the Secretary of State to issue a “direction” to require the relevant authorities in Northern Ireland to take action to implement the CEDAW recommendations. They do not amend the provisions set out in the No 2 Regulations. We have received a number of submissions in relation to these Regulations which are published on our webpages, along with the full text of the further information provided by the NIO. 10

10.Paragraph 7.4 of the EM states that some service provision has been established by registered medical professionals across the Northern Ireland Health and Social Care Trusts, which has allowed over 1,100 women and girls to access abortion services locally. However, despite the legislation having been in force for a year, these services have not been commissioned or supported by the Northern Ireland Department of Health and full provision is not yet available in Northern Ireland. This has meant that some women have had to continue to travel to England to access abortion services under the Abortion Act 1967 rather than being able to access local healthcare.

11.Paragraph 7.5 of the EM further states the Government’s view that, while some delay could be attributed to the COVID-19 pandemic, “progress should have been made by now”, and that “it is not sustainable for medical professionals to take forward service provision without any formal commissioning, support, relevant medical guidance, and funding” from the Northern Ireland authorities. The EM concludes: “We have reached a point where it remains clear that the Department of Health [in Northern Ireland] will not move forward to make positive progress on this matter”. The 2021 Regulations therefore confer on the Secretary of State the power to direct a Minister or Northern Ireland department to take action to implement the recommendations in paragraphs 85 and 86 of the CEDAW Report.

12.Paragraph 7.9 of the EM states that, following the making of the 2021 Regulations, the Secretary of State will continue to engage in discussions with the Minister and the Department of Health, as well as the Northern Ireland Executive, to see if progress can be made ahead of any direction.

Direction

13.We asked the NIO to explain what form such a “direction” would take, and they responded:

“A “direction” is a document which sets out the actions that the relevant person is directed to take. The direction will be given to the recipient under cover of a letter from the Secretary of State for Northern Ireland. As set out in the Regulations, the direction will also be published and laid before Parliament. We envisage that the direction will look quite similar to a statutory instrument.”

14.We also asked what sanctions are available to the Secretary of State if a direction is not complied with. The NIO said that any failure to take the action as directed could be challenged by an application for judicial review.

15.We asked the NIO if a direction would impinge on the conscientious objection protection in the No 2 Regulations in any way. They replied:

“Regulation 12 of the Abortion (Northern Ireland) (No. 2) Regulations 2020 does not interact with the Abortion (Northern Ireland) Regulations 2021. The conscientious objection protection in the 2020 Regulations applies to medical professionals and others in the actual delivery of abortion services where they can opt-out of participation in treatment for abortion to which they have a conscientious objection. This protection does not relate to the Department of Health and relevant health bodies in terms of commissioning abortion services as that does not amount to ‘participation in treatment’.

The Supreme Court has held that the extent of conscientious objection is restricted to performing the tasks involved in the whole course of treatment bringing about the termination of the pregnancy, beginning with the administration of the drugs designed to induce labour and normally ending with the ending of the pregnancy by delivery of the foetus, placenta and membrane. People carrying out the host of ancillary, administrative and managerial tasks that might be associated with those acts do not have the same right to conscientious objection.

This will be an important matter for the Northern Ireland Department of Health to address in any guidance it produces and/or professional guidance it adopts on these matters.”

Timing

16.The 2021 Regulations were brought into effect on 31 March 2021, the anniversary of the original Regulations taking effect, using the made affirmative procedure. Contrary to the convention of allowing at least 21 days between laying an instrument and bringing it into effect, the 2021 Regulations came into effect eight days after laying. We asked the NIO why this had been done. They replied:

“This was a policy choice. While there may been some inevitable delay by the Department of Health in Northern Ireland in commissioning abortion services, given the unforeseen pressures of responding to the Covid pandemic, progress cannot continue to stall. As it remains clear that the Department of Health will not move forward to make positive progress on this matter, we have had to take this action.

As the Explanatory Memorandum notes, as the instrument does not impose duties on people that are significantly more onerous than before under the 2020 Regulations, or require them to adopt different patterns of behaviour, so commencement less than 21 days after making does not give rise to the usual concern about whether those affected have a reasonable chance to adapt their behaviour.”

17.The 21-day convention is not, however, only for the benefit of those affected in the wider public but also to allow time for parliamentary scrutiny before legislation takes effect. According to Statutory Instruments Practice (the National Archives’ guidance):

“If the 21-day period is reduced, you are reducing the time Parliament has to scrutinise the SI. This should not be done simply for Departmental convenience. If observing the ‘21-day rule’ is impossible, you must explain in the EM why the SI could not have been made and laid sooner, and why it had to come into effect on the day specified. If the reasons are matters of policy, explain why the policy requires such urgent action. The explanation in the EM should also include what the financial or other impact of delaying the legislation to meet the rule would be.” 11

18.Our own guidance also warns that a department may be criticised if regulations introducing new policy come into effect when the House is not sitting.12 The House may therefore wish to press the Minister for further justification as to why the NIO decided to bring these Regulations into effect in breach of the 21-day convention and during Easter recess.

The problem to be addressed

19.We asked for clarification of the nature and scale of problem that a direction may be used to address. The NIO explained what had happened following the original regulations coming into effect:

“… medical professionals in Northern Ireland commenced some abortion service provision within the scope of the Regulations, across the five Health and Social Care Trusts in Northern Ireland. However, these services have been susceptible to collapse - with both the Northern Trust and South Eastern Trust having to suspend their interim services for periods of time due to resourcing constraints.

The relevant Northern Ireland health bodies, being the Northern Ireland Department of Health, Health and Social Care Board, and the Public Health Agency, have not taken any action to formally commission these services and support the Trusts and medical professionals directly. This means that there is no treatment for the termination of pregnancy available in all of the circumstances in which a termination may lawfully be carried out under the Abortion (Northern Ireland) (No. 2) Regulations 2020 on a consistent basis across the Trusts; no guidance available for medical professionals; no counselling services funded and supported through the health and social care system; and no provision of information about how to access the abortion services.”

20.Some abortions are happening in Northern Ireland through sexual and reproductive health clinics. The 1,100-figure cited in the EM was provided by the Northern Ireland Minister of Health, Robin Swann MLA, in recent Assembly Questions. Because abortion was previously criminalised in Northern Ireland, only eight abortions were conducted within the health system in 2018–19, prior to the change in the law. The NIO does not have figures for abortions within Northern Ireland; however, it states that 1,053 women travelled to England to access abortion services in 2018 and 1,014 women in 2019 but this is not the full picture. The figures for 2020 will be affected by the pandemic and have not yet been published by the DHSC, and so the true scale of demand for abortion services in Northern Ireland is not yet clear.

21.Furthermore, the CEDAW recommendations are wider than the provision of abortion services. They require, for example, information on and access to affordable sexual and reproductive health services and products, including contraception, and non-biased, scientifically sound counselling to be made available. The NIO explained that:

“We want to deliver through the Department of Health in Northern Ireland. However, the statutory duty imposed on the Secretary of State by section 9 of the NIEF Act is such that until all of the recommendations in the CEDAW Report are implemented in Northern Ireland, he will not have complied with his statutory duties in full.”

Submissions to the Committee

22.We have received submissions from CARE NI, the Democratic Unionist Party (DUP), the Presbyterian Church in Ireland, Right to Life and Mr Christopher Langley.

23.Several of the submissions ask how the Secretary of State can still have a statutory obligation to implement the CEDAW recommendations under the NIEF Act given that the Northern Ireland Executive resumed in January 2020. Right to Life point directly to the Devolution Settlement provisions, 13 which explicitly make health, social services and education fully devolved matters on which the Assembly has full legislative powers.

24.The NIO told us:

“The NIEF Act was passed when there was no Executive in Northern Ireland. This position is reflected in the commencement provision in section 13: section 9 only came into force because no Executive was formed before 21 October 2019. The NIEF Act does not provide, however, that section 9 ceased to have effect when an Executive was formed. The statutory duty is unchanged. This reflects the overarching constitutional position that Parliament remains sovereign and may legislate in respect of transferred (i.e. devolved) matters in Northern Ireland if it chooses.”

25.Conversely, the Northern Ireland Human Rights Commission (NIHRC) allege that the Secretary of State has failed to comply with section 9(1) of the NIEF Act. The NIHRC are asking the court to issue a mandatory order requiring the Secretary of State to ensure that the CEDAW recommendations are fully implemented in Northern Ireland, whether through the regulations or otherwise.

26.The NIHRC is also challenging the Northern Ireland Executive Committee and the Minister of Health for failure to agree, commission and fund abortion and post-abortion care, as a breach of Article 8 of the ECHR. Both cases are due to be heard in May.

27.The Presbyterian Church in Ireland and the DUP both question the title and scope of the 2021 Regulations because the CEDAW recommendations extend beyond making abortion available, also requiring the authorities, under recommendation 86(d), to “make age-appropriate, comprehensive and scientifically accurate education on sexual and reproductive health and rights a compulsory component of curriculum for adolescents, covering prevention of early pregnancy and access to abortion, and monitor its implementation.” They object on the ground that a direction to implement this provision will take local power from school governors, teachers and parents on sensitive issues, thereby undermining the devolved right of both the Executive and the individual schools to embrace a particular ethos.

28.The submissions also raise the legal status of the CEDAW recommendations. They refer to paragraph 7.7 of the EM which states the power to direct conferred by the 2021 Regulations “is similar to” the power conferred by section 26 of the Northern Ireland Act 1998 but that provision cannot be relied on by the Secretary of State to ensure that the recommendations in paragraphs 85 and 86 of the CEDAW Report are implemented “… [because] those recommendations are not binding and do not constitute international obligations”. The submissions therefore question whether, if they are not binding, the Secretary of State is obliged to implement them all or in full, in the face of opposition from the local population.

29.The CARE NI submission also queries the logic of the NIO assertion in paragraph 10.2 of the EM: “Nor is this instrument dealing with the manner in which the recommendations in the CEDAW Report should be implemented” on the ground that, until that direction is given it will not be clear whether the Secretary of State is requiring the authorities to comply or setting out the way in which it must be done.

30.A further constitutional issue arises because the DUP has proposed a private members Bill, the Severe Fetal Impairment Abortion (Amendment) Bill (“the SFI Bill”) which has just passed second reading stage in the Northern Ireland Assembly. The SFI Bill seeks to amend Regulation 7 of the No 2 Regulations to remove access to abortions in cases of ‘severe foetal impairment’, but retains access to abortions in cases of fatal foetal abnormalities. This change would be contrary to the CEDAW recommendation 85 (b) (iii) and could therefore conflict with the Secretary of State’s duties under section 9 of the NIEF Act to implement the CEDAW recommendations in full. The NIO argues that, were the SFI Bill to be passed, it would not conflict with the 2021 Regulations. They are monitoring the progress of the SFI Bill.

Conclusion

31.These Regulations are supplementary to the 2020 Regulations and our earlier reports on those Regulations reflect some of the substantive issues associated with the extension of abortion services in Northern Ireland. The 2021 Regulations do not change the intention or content of the 2020 Regulations; however, they provide a mechanism to enforce their implementation which, in turn, raises complex legal and constitutional questions. We regard it as poor practice to bring new policy into effect when the House is not sitting, and using a procedure which prevents discussion before the legislation takes effect. It is particularly inappropriate when that policy is likely to be controversial, and the House may wish to ask the Minister to explain that decision

32.We therefore draw the 2021 Regulations to the special attention of the House on the ground that they are politically and legally important and give rise to issues of public policy likely to be of interest to the House.


1 Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (SI 2020/445), 13th Report, Session 2019–21 (HL Paper 57).

2 Adoption and Children (Coronavirus) (Amendment) (No.2) Regulations 2020 (SI 2020/909), 26th Report, Session 2019–21 (HL Paper 126).

4 DfE, ‘Coronavirus (COVID-19): guidance for children’s social care services’ (31 March 2021): https://www.gov.uk/government/publications/coronavirus-covid-19-guidance-for-childrens-social-care-services [accessed 8 April 2021].

7 Committee on the Elimination of Discrimination against Women, Report of the inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (18 September 2018): https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/GBR/INT_CEDAW_ITB_GBR_8637_E.pdf [accessed 9 April 2021].

8 Abortion (Northern Ireland) Regulations 2020 (SI 2020/345), 11th Report, Session 2019–21 (HL Paper 49).

9 Abortion (Northern Ireland) (No. 2) Regulations 2020 (SI 2020/503), 16th Report, Session 2019–21 (HL Paper 68).

11 National Archives, Statutory Instruments Practice: 5th Edition (November 2017): https://www.legislation.gov.uk/pdfs/StatutoryInstrumentPractice_5th_Edition.pdf [accessed 9 April 2021]. Para 2.11.4

13 Cabinet Office and NIO, Devolution settlement: Northern Ireland (20 February 2013): https://www.gov.uk/guidance/devolution-settlement-northern-ireland [accessed 12 April 2021].




© Parliamentary copyright 2021