Instruments drawn to the special attention of the House
Abortion (Northern Ireland) Regulations 2020 (SI 2020/345)
Date laid: 25 March 2020
Parliamentary procedure: made affirmative
The purpose of these Regulations is to implement a requirement under section 9 of the Northern Ireland (Executive Formation etc.) Act 2019 to make provision for regulating abortions in Northern Ireland, and to set out the circumstances in which an abortion may take place. Section 9(6) of the 2019 Act requires the Regulations to come into force by 31 March 2020. The provision proposed for Northern Ireland broadly mirrors that for England and Wales but is also required by law to implement the recommendations of the UN Report under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. The Committee has received submissions from Members of the House of Commons, the House of Lords and the Northern Ireland Assembly, Churches and other organisations. This Report seeks to set out the key points made in the submissions. Because we found that the Government’s policy choices were not always clearly explained in the Explanatory Memorandum, additional material is included here. This Report also notes several instances where the Government’s administrative process for bringing these Regulations forward appears suboptimal.
The Committee draws these Regulations to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.
1.The purpose of these Regulations is to implement a requirement under section 9 of the Northern Ireland (Executive Formation etc.) Act 2019 (“the 2019 Act”) to make provision for regulating abortions in Northern Ireland, and to set out the circumstances in which an abortion may take place. Section 9(6) of the 2019 Act requires the Regulations to come into force by 31 March 2020. The Regulations were laid on 25 March 2020 with an Explanatory Memorandum (EM) by the Northern Ireland Office (NIO).
2.The instrument implements paragraphs 85 and 86 of the UN 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 (CEDAW Report).1 The full text of those paragraphs is set out in Appendix 1 to this Report.
3.The Committee has received submissions about this instrument from Members of the House of Commons, the House of Lords and the Northern Ireland Assembly, Churches and other organisations. The key points raised in the submissions are set out in this Report. The 21 submissions are published in full on the SLSC webpage.2
Legislative Background
4.The Abortion Act 1967, which liberalised rules in relation to abortion in England and Wales, was not extended to Northern Ireland. A termination has only been permitted in Northern Ireland if a woman’s life is at risk or if there was a risk of permanent and serious damage to her mental or physical health. Rape and incest, or diagnosis of fatal foetal abnormality (FFA) — where medical professionals believe that a baby will die before, during or shortly after birth — have not been grounds for abortion in Northern Ireland. On that basis, eight terminations were carried out in Northern Ireland in 2018-19.
5.A number of court cases have contested this position on human rights grounds. The CEDAW Report states that it is in breach of Article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women and makes a number of recommendations on how the Government should remedy the situation.
6.When the Northern Ireland (Executive Formation etc.) Bill was before the House of Commons in July 2019, an opposition amendment added a requirement on the Secretary of State to give effect to the CEDAW Report recommendations in Northern Ireland through regulations. This provision was further amended in the House of Lords to require the regulations to be in force by 31 March 2020.
7.Because the Northern Ireland Executive was not restored by 21 October 2019, section 9 of the 2019 Act automatically came into force. Section 9(2) repealed sections 58 and 59 of the Offences Against the Person Act 1861, meaning that abortion up to the point at which a child is capable of being born alive3 has not been, since 22 October 2019, a criminal offence in Northern Ireland.
8.These Regulations now make provision for regulating abortions in Northern Ireland and set out the circumstances in which an abortion may take place. The Department of Health in Northern Ireland will be responsible for commissioning services consistent with the new regulatory framework, including the long-term oversight and monitoring of such services.
Policy framework
9.Regulation 3 of the instrument allows for a termination of a pregnancy without conditions if one medical professional confirms that the pregnancy has not exceeded 11 weeks and six days gestation.4 Regulation 8 provides that up to the end of the tenth week, following a medical consultation and the first stage of treatment (usually the drug Mifepristone), the second part of that treatment (usually the drug Misoprostol) may be carried out in the woman’s home. The EM states that, in England and Wales, 90% of abortions are performed within this timeframe, and that a 12-week limit is also consistent with provision in the Republic of Ireland and many other countries worldwide.
10.Abortions beyond 12 weeks gestation are made lawful, subject to conditions:
- up to 24 weeks gestation (23 weeks and six days) where two medical professionals are of the opinion, made in good faith (that is, not dishonestly or negligently), that the continuance of the pregnancy would involve risk of injury to the physical or mental health of the pregnant woman, greater than the risk of terminating the pregnancy. Medical professionals may take into account a woman’s wellbeing, and her actual or reasonably foreseeable circumstances, including wider social circumstances (regulation 4);
- without any gestational time limit, where there is a risk to the life of the woman, greater than if the pregnancy were terminated, or where necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman, including in cases of immediate necessity (regulations 5 and 6); and
- without any gestational time limit, where there is severe foetal impairment or FFA. As well as complying with the requirements of the CEDAW Report, this, according to the NIO, complies with the judgment of the High Court in Belfast that, where FFA is involved, the lack of abortion services in Northern Ireland is contrary to Article 8 of the European Convention on Human Rights (ECHR)5 (regulation 7).
11.A termination of pregnancy may only be carried out by a “registered medical professional”. This is defined in regulation 2 as a registered medical practitioner (doctor), a registered nurse or a registered midwife. It is an offence for anyone else to terminate a pregnancy subject to a level 5 fine (up to £5,000).6
12.Regulation 13 modifies section 25 of the Criminal Justice Act (Northern Ireland) 1945 to exclude the woman and medical professionals from the offence of child destruction, so that late terminations may be conducted legally if in accordance with regulations 3 to 8.
13.The Department of Health in Northern Ireland intends to commission General Practitioners premises, clinics provided by a Health and Social Care (HSC) Trust, and HSC hospitals to conduct the later terminations (see regulation 8). The details of this will be announced in due course.
14.The NIO states that the overarching policy aim of these Regulations is to ensure that the framework: protects and promotes the health and safety of women and girls; provides clarity and certainty for the medical profession; and, is responsive and sensitive to the Northern Ireland Executive and Assembly being restored.
Certification
15.Part 5 of the Regulations puts in place a certification process for all terminations in Northern Ireland. In relation to terminations carried out before 12 weeks gestation (regulation 3) or in a case of immediate necessity where there is a risk to the life of the woman (regulation 5), the certificate must be signed by one medical professional. For terminations on other grounds (regulations 4, 6 and 7), the certificate must be signed by two medical professionals. Certificates must be retained by the medical professional carrying out the abortion for three years.
16.Regulation 10 requires specified information relating to the termination to be submitted to the Northern Ireland Chief Medical Officer so that data can be collected to enable scrutiny and to inform further development of termination services. Intentional failure to comply with the certification process is an offence subject to a level 4 fine (up to £2,500).
17.The NIO confirms that these provisions largely mirror how certification is provided and retained in the rest of the UK under the Abortion Act 1967. This information will be subject to the existing procedures already in place for the treatment of medical records, including normal data protection and patient confidentiality rules.
Conscientious objection
18.Regulation 12 provides protection for conscientious objection in Northern Ireland. Except where a woman’s life is in danger, “a person is not under a duty to participate in any treatment authorised by these Regulations”.
19.The EM states that this is consistent with the approach taken across the rest of the UK (see section 4 of the Abortion Act 1967). Paragraph 7.40 of the EM further explains that the UK Supreme Court, in the case of Doogan7 has held that the extent of conscientious objection is restricted to “participation”, that is, performing the tasks involved in the course of treatment to terminate the pregnancy and its immediate consequences. People carrying out ancillary, administrative and managerial functions that might be associated with those tasks do not therefore have the same right to conscientious objection.
20.Almost all of the submissions received by the Committee are critical of regulation 12 on the ground that, by excluding those carrying out ancillary, administrative and managerial functions, the provision is too narrow and does not adequately protect their rights to their religious or philosophical beliefs under Article 9 of the ECHR.
21.John F. Larkin QC, Attorney General for Northern Ireland, in his submission to the Committee, argues that, although by using the word “participate” regulation 12 is referencing the Doogan case, that case related to the law of Scotland. In Northern Ireland there is an overarching requirement under section 6(2)(e) of the Northern Ireland Act 1998 which prevents the Assembly (and, therefore, 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. He asserts that, by excluding ancillary staff, regulation 12 discriminates against them unlawfully.
22.The NIO takes the view that the approach is proportionate. They state that section 6(2)(e) of the Northern Ireland Act 1998 provides a prohibition against direct discrimination (see section 98(4) of the Northern Ireland Act 1998):
“It is the Department’s view that it would not amount to direct discrimination to require all employees, or all employees of a particular class, to perform the same duties, regardless of their religious belief or political opinion.
It is accepted that it may amount to indirect discrimination, if a person could show that, due to their religion or belief, they were disproportionately affected by the requirement to carry out certain duties. But a provision that amounts to indirect discrimination is not ultra vires by reason of section 6(2)(e) of the Northern Ireland Act 1998.”
23.The NIO added:
“The proportionality of regulation 12 is furthermore supported by the independent assessment of the Northern Ireland Human Rights Commission, who said as follows in their response to the Government consultation on the new framework:8
In respect of the proposed conscientious objection provision, the Commission is of the view that the exclusion of ancillary, administrative and managerial tasks, represents a proportionate restriction on Article 9 ECHR and is in keeping with the Supreme Court’s 2014 ruling. The Commission is of the view that allowing a conscientious objection provision in respect of termination treatment alone is sufficient to safeguard Article 9 ECHR and reflects the position taken in the rest of the UK’ “.
24.Regulation 12 is expressed in general terms, referring to “a person” not being under a duty to participate. The restrictive interpretation of the provision following the Doogan case is explained in paragraph 7.40 of the EM rather than in the legislation. 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.
25.A number of submissions, for example from Baroness O’Loan and most Churches, point out that beliefs are strongly held in Northern Ireland and the requirement to associate with or, in cases of emergency, participate in terminations may lead to shortages of NHS staff in certain areas. The Presbyterian Church also notes that there is no Impact Assessment nor any indication of how many women might use the service and the associated financial cost.
26. Given the number of submissions expressing opposition to the legislation, including the Christian Medical Fellowship, we asked whether the Government are confident that they will be able to recruit sufficient staff willing to operate the system so as to be able to create a reasonably accessible national network of termination clinics. The NIO replied:
“We have been engaging with the Department of Health in Northern Ireland and medical practitioners, including royal medical colleges, for many months, including during the period of public consultation, and understand that there would be sufficient staffing levels across doctors, nurses and midwives, to be able to commission and provide services, consistent with the Regulations.”
Disability
27.Regulation 7 states that a termination may be authorised if (a) the death of the foetus is likely before, during or shortly after birth or (b) “if the child were born, it would suffer from such physical or mental impairment as to be seriously disabled”.
28.A number of submissions assert that the provision in relation to disability goes too far. For example, Fiona Bruce MP, Sir Edward Leigh MP and Care NI state that regulation 7(b) is contrary to EU law because the UN Convention on the Rights of Persons with Disabilities (UNCRPD) extends to those in the womb. The Attorney General for Northern Ireland, on the other hand, acknowledges that regulation 7 implements the requirement of paragraph 85(b)(iii) of the CEDAW Report. There therefore appears to be a question over which UN Convention should take priority. Several submissions also highlight that this possible conflict of conventions applies to abortion legislation throughout the UK.9
29.The NIO responded that the instrument is fully compliant with all the conventions but commented that the UNCRPD does not have the status of binding EU law. It is an unincorporated treaty which does not form part of domestic law. On the extent to which the UNCPRD is to be treated as part of EU law by means of the European Communities (Definition of Treaties) (United Nations Convention on the Rights of Persons with Disabilities) Order 2009, the European Court of Justice held that the UNCPRD is not “unconditional and sufficiently precise” to have direct effect.10
30.The NIO continued that:
“In relation to Article 10 of the CRPD, we do not agree that the provision extends protection to those in the womb. Article 10 of the CRPD, in our view, does no more than restate Article 2 to the European Convention on Human Rights (ECHR). The unborn do not enjoy rights under the Convention: see, for example, Re Northern Ireland Human Rights Commission’s application for judicial review [2018] UKSC 27, [2019] 1 All ER 173 at para. 21 per Lady Hale.11 If Article 10 is to be read as suggested, then it would seem to suggest that abortion would never be lawful.”12
31.The Christian Medical Fellowship, among others, agree that section 9(1) of the 2019 Act requires the Secretary of State to comply with the requirements of the CEDAW Report, but argue that paragraph 85(b) of the Report only requires abortion to be made available in the situations addressed in regulations 4 to 7. The elective provisions in regulation 3, they say, are objectionable. On a similar note, Lord Morrow questions the addition of gestation limits to the basic CEDAW requirements.
32.Recommendation 85(b) requires the Secretary of State to:
“(b) Adopt legislation to provide for expanded grounds to legalise abortion at least in the following cases: (i) Threat to the pregnant woman’s physical or mental health, without conditionality of “long-term or permanent” effects; (ii) Rape and incest; (iii) Severe foetal impairment, including fatal foetal abnormality, without perpetuating stereotypes towards persons with disabilities and ensuring appropriate and ongoing support, social and financial, for women who decide to carry such pregnancies to term”.
33.The Recommendation sets out a minimum requirement and does not prevent the Secretary of State from setting up a more liberal regime. 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.
34.Several submissions, for example those from Carla Lockhart MP, and the Evangelical Alliance, question how a “severe disability” will be interpreted, and whether a cleft lip or Downs Syndrome might be included within the definition. Others, including the Presbyterian Church, point to a dichotomy in the CEDAW recommendation which requires the provision of termination for “severe foetal impairment” but “without perpetuating stereotypes towards persons with disabilities”. The House may wish to press the Minister about how these provisions will be interpreted. Although this may well be set out in the guidance, this is not yet available; it would have aided clarity if a draft of any interpretive guidance had been available alongside these Regulations.
35.Fiona Bruce MP comments that these Regulations make no provision in relation to paragraph 85 (b) of the CEDAW Report which requires “appropriate and ongoing support, social and financial, for women who decide to carry such pregnancies to term”. The NIO confirms that this is because such a woman and her child would be eligible for the normal disability and/or carer’s benefits and no additional legislation is required.
36. The submission from Both Lives Matter is critical of the Regulations for failing to make provision for any alternative care or support services other than abortion. We note that many of the recommendations in paragraph 86 of the CEDAW Report relate to sexual education, contraception and support services, none of which are mentioned in these Regulations. Section 9(1) of the 2019 Act also requires the Secretary of State to implement paragraph 86 of the CEDAW Report. The House may wish, therefore, to ask the Minister how the Government intend to comply with those requirements.
Other concerns
37.Submissions from Lord Alton of Liverpool and Right to Life, among others, argue that there is a significant omission in the Regulations in that, by allowing unconditional abortion before 12 weeks, they do not prevent abortion on the grounds of the foetus’s gender, which can now be identified at 10 weeks.
38.Fiona Bruce MP, among others, argues that the Regulations are deficient because they do not include an offence of coercive abortion, for example where a partner secretly inserts abortifacients into the food of a pregnant woman. However, regulation 13 requires the woman’s explicit consent to medical treatment, and regulation 11 makes it an offence for anyone other than a medical professional to administer treatment.
39.Joanne Bunting MLA argues that the Regulations are deficient because they do not mirror the provisions in England for the inspection of premises with a specific focus on whether they provide abortions safely. She states that the Regulation and Quality Improvement Authority (the equivalent of the Care Quality Commission in England) does not have the requisite powers. She also suggests that there is a gap in the regulatory regime because there is no requirement for a private abortion clinic to be registered under regulation 4 of the Independent Health Care Regulations (Northern Ireland) 2005. The NIO responded that the duties are equivalent, and the differences are a matter of choice in legal drafting. As such, this may be a matter for consideration by the Joint Committee on Statutory Instruments.
Challenges to the 2019 Act
40.Some submissions question the legitimacy of the Regulations given the restoration of the Northern Ireland Executive and Assembly on 13 January 2020. Care NI, for example, argues that Parliament could have repealed section 9 of the 2019 Act to allow the Northern Ireland Assembly to make its own arrangements and that not to have done so undermines the principle of devolution. Sir Jeffrey Donaldson MP supports that view and also raises some constitutional issues around the passage of the 2019 Act. Paul Given MLA points out that 100% of the Northern Ireland MPs who take their seats in Westminster voted against the proposal on 9 July 2019 and that this should be taken as evidence of the Assembly’s likely objection to the arrangements being imposed on Northern Ireland.
41.A number of submissions, for example those from the Attorney General for Northern Ireland and from Baroness O’Loan, raise a question about whether the Secretary of State has exceeded the powers conferred by the 2019 Act, in particular in relation to regulations 7 and 12. They argue that, although section 9(9) of the 2019 Act provides that the Secretary of State may make any provision that could be made by an Act of the Northern Ireland Assembly, this clashes with separate legislation that prevents non-compliance with EU law.
42. Whilst beyond the scope of this Committee’s remit, the House may wish to ask the Minister for a response to these questions.
Consultation
43.Public consultation began on 4 November 2019 and lasted for a period of six weeks. In our view this is too short for so sensitive a topic. 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.
44.Submissions from Paul Given MLA, NI Voiceless and the Christian Institute criticise the Government response to the consultation for failing to explain why such a strong level of objection has been overridden. They also 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, in particular regulation 13 (which excludes the woman and medical professionals from the offence of child destruction), were not included in the consultation document.
Timing
45.Section 9(6) of the 2019 Act requires the Regulations to come into force by 31 March 2020. They are subject to the made affirmative procedure and, under the provisions of the 2019 Act, they will cease to have effect after a period of 28 days13 unless they are approved by both Houses of Parliament.
46.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.
47.That said, we note that these are only enabling Regulations and no services have been formally commissioned in Northern Ireland. The NIO states in the EM its intention for service provision to be gradually introduced so that registered medical professionals can receive appropriate training and will be made aware of the requirements being imposed on them.
Conclusion
48.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.
1 Report CEDAW/C/OP.8/GBR/, published 18 September 2018 https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/GBR/INT_CEDAW_ITB_GBR_8637_E.pdf.
2 SLSC Publications page: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/.
3 Section 25 of the Criminal Justice Act (Northern Ireland) 1945.
4 This differs from the Abortion Act 1967 which allows abortion up to 24 weeks gestation on grounds of risk to mental or physical health, but not unconditional access. The NIO states that this was determined to be the most appropriate policy way to comply with the legal obligation to allow access to abortions in cases of rape and incest as required by the CEDAW recommendation.
6 This differs from the Abortion Act 1967 where only a doctor is permitted. However, the NIO states that this approach reflects continued developments in multidisciplinary patient care in Northern Ireland, with many nurses and midwives now taking on additional duties, in line with their professional competence, training and patient care.
8 See Northern Ireland Human Rights Commission, Response to HM Government consultation on a new legal framework for abortion services in Northern Ireland - Implementation of the legal duty under section 9 of the Northern Ireland (Executive Formation etc) Act 2019 (December 2019): https://www.nihrc.org/uploads/publications/NIHRC_response_to_TOP_consultation_Dec_2019.pdf [accessed 20 April 2020].
9 The Delegated Powers Committee also commented on this in their report on the 2019 Act, 59th Report, Session 2017-19 (HL Paper 408).
10 European Court of Justice, Wolfgang Glatzel v Freistaat Bayern, C356/12 Glatzel v Freistaat Bayern.
11 Supreme Court, In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) Reference by the Court of Appeal in Northern Ireland pursuant to Paragraph 33 of Schedule 10 to the Northern Ireland Act 1998 (Abortion) (Northern Ireland), [2018] UKSC 27, [2019] 1 All ER 173.
12 The NIO response was misquoted and has now been corrected.
13 No account is taken of periods when Parliament is dissolved or prorogued or adjourned for more than four days (s12(5) of the 2019 Act).