Instruments drawn to the special attention of the House
Abortion (Northern Ireland) (No. 2) Regulations 2020 (SI 2020/503)
Date made: 13 May 2020
Parliamentary procedure: made affirmative
These Regulations (“the No. 2 Regulations”) revoke and replace the Abortion (Northern Ireland) Regulations 2020 (SI 2020/345) (“the original regulations”) which were made and laid on 25 March 2020. The No. 2 Regulations are also subject to the made affirmative procedure, and so have the effect of extending the approval period by 28 days from 12 May. Paragraph 3.4 of the Explanatory Memorandum (EM) explains that the Government decided to lay the No. 2 Regulations because of the impact of the current pandemic on parliamentary scrutiny processes and the absence, at that time, of a virtual voting system. Submissions made to the Committee, however, question the legitimacy of the No. 2 Regulations. This legislation has been in effect without debate on an approval motion since 31 March and, during that time, abortions under the new rules have begun to take place.
The original regulations and the No. 2 Regulations are almost identical. The No. 2 Regulations correct a minor technical defect identified by the Joint Committee on Statutory Instruments which, according to paragraph 3.9 of the EM, makes no practical difference. In these circumstances, the views we expressed in our 11th Report in relation to the original regulations apply equally to the No. 2 Regulations. The submissions received in response to the original regulations remain relevant. A number of further submissions, many reacting to the material from the Northern Ireland Office cited in our 11th Report, have also been received. They are all available on the Committee’s webpage.
These Regulations are drawn 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.These Regulations (“the No. 2 Regulations”) revoke and replace the Abortion (Northern Ireland) Regulations (SI 2020/345) (“the original regulations”) which were made and laid before Parliament on 25 March 2020 to implement section 9 of the Northern Ireland (Executive Formation etc.) Act 2019 (“the 2019 Act”) by making provision for regulating abortions in Northern Ireland. Because the original Regulations were due to lapse on 17 May, the Minister of State, Northern Ireland Office (NIO), made the No.2 Regulations on 12 May, and they came into effect on 14 May. Like the original regulations, to remain in force they must be approved by both Houses of Parliament within 28 days of having been made. 1
2.The original regulations and the No. 2 Regulations are almost identical. The No. 2 Regulations correct a minor technical defect identified by the Joint Committee on Statutory Instruments,2 a cross-referencing error in paragraph 7 of the Schedule (which relates to the certification process). Paragraph 3.9 of the Explanatory Memorandum (EM) states that the reporting forms issued to practitioners were correct and so the amendment has no practical effect.
3.Other consequential drafting changes are the addition of regulation 1(2) to revoke the original regulations and the addition of regulation 16, which inserts a transitional provision to ensure that revoking and replacing the original regulations does not have any impact on the notification and certification processes done under them.
4.In these circumstances, the views we expressed in our 11th Report in relation to the original regulations apply equally to the No. 2 Regulations.3
Procedural considerations
5.Our 11th Report described certain aspects of the administrative process behind the original regulations as “suboptimal”. Particular concerns were the consultation process and issues about timetabling as a result of the Government laying the original regulations so close to the 31 March implementation date required under the 2019 Act.
6.Paragraph 3.4 of the EM explains that the Government decided to revoke and replace the original regulations with the No. 2 Regulations because of the impact of the current pandemic on parliamentary scrutiny processes and the absence, at that time, of a virtual voting system:
“… thereby giving Parliament an additional 28 days to consider the regulations and have the necessary approval debates, and to ensure that proper scrutiny and consideration is given to this instrument once the new parliamentary operating and voting procedures have been put in place …”.
7.In contrast, concerns have been raised in submissions from Lord Brennan QC and Ian Leist QC about the legitimacy of a second set of regulations, arguing that the original regulations fulfilled the legal obligation under the 2019 Act that had now lapsed. Lord Brennan describes laying a second set of regulations as “constitutionally indefensible”.
8.As a result of having two successive sets of regulations, the legislation has been in effect since 31 March without approval by the two Houses. We always regard it as poor practice to introduce a major policy change just before a recess (which is what happened with the original regulations), “thus denying Parliament an opportunity for scrutiny before the instrument came into effect”.4 In our report on the original regulations, we noted — by way of mitigation — that the regulations were only enabling and the NIO’s statement (in paragraphs 3.2-3.3 of the EM to the original regulations) that no services had been formally commissioned in Northern Ireland and that their intention was to introduce service provision gradually.
9.Paragraphs 3.7 and 3.8 of the EM to the No 2 Regulations, however, state:
“3.7 … whilst abortion has not been a criminal offence in Northern Ireland since 22 October 2019 (subject to the Criminal Justice Act (Northern Ireland) 1945), no services have been formally commissioned in Northern Ireland whilst waiting for the new legislation to come into force. This remains largely the case.
3.8 However, from early April 2020, we understand that some service provision, largely for early medical abortions, has commenced through existing sexual and reproductive health services in the Belfast, Northern and Western Trust areas.”
The House may wish to press the Minister for further information about the extent of the service provision since 1 April 2020.
Response to our 11th Report
10.A number of those who made a submission in relation to the original regulations have written again, and their letters are published in full on our webpage,5 many of them reacting to the material from the NIO included in our 11th Report. Concerns raised include the following themes:
- that regulation 3 exceeds the CEDAW recommendations6 in particular by setting gestational limits, with a more liberal regime before 12 weeks’ gestation;
- regulation 7 does not define “severe disability” sufficiently clearly and, by allowing abortion on the ground of fetal abnormality after 24 weeks, is permitting discrimination on the ground of disability; and
- regulation 12 does not allow those indirectly involved in a termination the scope for conscientious objection.
11.The Attorney General for Northern Ireland wrote on 29 April offering counter-arguments to the NIO’s interpretation of the legal position.7 A number of the other new submissions reference and support his letter.
New considerations
12.Amongst others, we received submissions containing legal arguments from Ian Leist QC and Lord Brennan QC and ethical concerns from Dr Calum Miller (a medical ethicist at Oxford University). We have received further letters from MLAs Paul Givan and Carla Lockhart of the Northern Ireland Assembly who, among other issues, highlight the devolution position. We also received a joint submission from Senator Ronan Mullen and Carol Nolan TD of the Irish Parliament about the No.2 Regulations’ wider implications for the Republic of Ireland. Sir John Hayes MP questions whether the maximum penalty for performing an abortion outside these Regulations should only be a level 5 fine, £5000, and describes it as out of step with the English and Irish regimes.
13.Both Lives Matter has also raised concerns, in particular, about the safety aspects of the regime introduced by regulation 8, and Fiona Bruce MP about fetal pain during the process of termination. Joanne Bunting MLA puts forward additional evidence about her concerns over the inspection regime for places undertaking abortions.
14.Several letters mention, as relevant to the context of these regulations, that a young woman with Down’s Syndrome and the mother of a young boy with Down’s Syndrome are together bringing a legal action to challenge the law on disability-selective abortion in England and Wales on the ground of discrimination.
15.All these submissions can be found on the Committee’s webpage. Given the complexity and sensitivity of the subject matter, and that legal argument is outside the remit of this Committee, we would encourage Members to read them in full, rather than for us to attempt to summarise them in this report, so that the issues they raise can be debated fully by the whole House.
Prison and Young Offender Institution (Coronavirus) (Amendment) (No.2) Rules 2020 (SI 2020/508)
Date laid: 14 May 2020
Parliamentary procedure: negative
Her Majesty’s Prison and Probation Service has taken advice from Public Health England on reducing the risks associated with outbreaks of coronavirus in prisons. In consequence, during the pandemic period, these amendments to the Rules give a power to prevent visits and for disciplinary measures to be heard by the Governor if the Independent Adjudicator is not available.
However, the Explanatory Memorandum (EM) provided by the Ministry of Justice focuses narrowly on the changes being made without giving sufficient information on how the normal regime operates. In consequence, we were unclear about the practicalities and impact of these changes. We obtained extensive additional information on how the new system would operate, which is set out in this Report, including the mitigations that are being put in place. We have asked for the EM to be revised so that the information is available to all readers.
While understanding the necessity of these protections, we are concerned that other welfare issues may arise if prisoners, particularly young offenders, are denied visits for an extended period of time. We note that each Governor will use their discretion on the particular circumstances at their institution, but MoJ states that visits were temporarily suspended on 24 March at the start of the declared transmission control period. Even if the transmission control period ended today, these Regulations would potentially allow the continued denial of visits for up to six months during the transition period, that is currently almost until Christmas. We note the mitigations that MoJ is introducing but highlight the need to balance prisoners’ mental and physical health appropriately.
These Rules are drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.
16.Her Majesty’s Prison and Probation Service (HMPPS) has taken advice from Public Health England on reducing the risks associated with outbreaks of coronavirus in prisons. In consequence, these amendments to the Rules give a power to prevent visits and for disciplinary measures to be heard by the Governor if the Independent Adjudicator is not available. The instrument introduces an enabling power that will remain on the statute book until 25 March 2022, but the powers can only be used during a coronavirus period (that is during a transmission control period and subsequent transition period as defined).
17.The Explanatory Memorandum (EM) provided by the Ministry of Justice (MoJ) focuses narrowly on the changes being made without giving sufficient information on how the normal regime operates. In consequence, we were unclear about the practicalities and impact of these changes. We therefore asked for the additional information set out below. We have also asked for the EM to be revised so that this information is available to all readers.
Denial of visits
18.We fully understand the necessity of limiting visits to prevent infection, but asked whether such a ban would be imposed on a prison-wide basis, wing by wing, or on individual prisoners. We also asked what factors would inform that decision: is it that the prisoners have Covid-19, that their family or visitors have Covid-19, or that Covid-19 is at a certain level in the surrounding area?
19.MoJ replied:
“Social visits at all prisons were temporarily suspended on 24th March 2020. The decision to suspend social visits reflects UK Government guidelines around social distancing and restrictions on non-essential travel, and was taken as part of the response to COVID-19 with the aim of preventing spread of infection and to protect lives. The amendments provide a clear legal basis to the ongoing suspension of social visits.
The Prime Minister has now set out a conditional roadmap for a step-by-step lifting of restrictions in the community. We aim to take a similar approach, but because prisons are a closed setting with many vulnerable individuals it is right that we proceed cautiously. It may be safe for some prisons to resume visits earlier than others, depending on their local circumstances. We will take a data and evidence-based approach to making decisions about lifting the current restrictions, informed by public health advice.”
20.We asked what assessment is to be made of the risks to the mental health of a prisoner deprived of visits as compared to his or her physical health, and MoJ replied:
“During the period of COVID-19 restrictions, prisons are focusing resources on a number of regime areas including prisoner safety and welfare, and family contact. As such prisons are prioritising essential safer custody arrangements such as Assessment, Care in Custody and Teamwork (ACCT) — which is the care planning process for prisoners identified as being at risk of suicide or self-harm — and alternative ways prisoners can maintain contact with family and friends. Alternative arrangements include:
- Providing 900 locked mobile phones to establishments that do not yet have in-cell telephony.
- Promoting other ways to contact someone in prison, such as writing a letter, using the Email a Prisoner Service or the Prison Voicemail Service, where a voice message can be left for a prisoner.
- Introducing secure video calls to prisons and Young Offender Institutions (YOIs) across England and Wales. Following a successful trial at HMP Berwyn, HMPPS is installing the technology at 10 prisons with a wider rollout in the coming weeks.”
21.We asked what safeguards exist to prevent this power being used as a disciplinary measure rather than a health protection measure. MoJ replied:
“The prisoner discipline — adjudications —system as set out in Prison Service Instruction 05/2018 and underpinned by the Prison Rules 1999 and Young Offender Institution Rules 2000 upholds justice in prisons, ensures actions have consequences and enables governors to make the right judgments for their circumstances and their prisons. The Prison Rules and YOI Rules expressly provide an exhaustive list of punishments which may be imposed by a governor or Independent Adjudicator. Prisoners’ statutory visits entitlement cannot be removed as a punishment under this exhaustive list, although additional visits earned as a privilege can be. We will ensure that operational guidance supporting the reintroduction of visits is clear that visits - other than those earned as a privilege - cannot be removed as a punishment.”
Independent Adjudication
22.MoJ further explained that the charges that are referred to an Independent Adjudicator (IA) are those where the charge is so serious that up to 42 additional days’ custody could be awarded (Prison Rule 53A/YOI Rule 58A).8 IAs are District Judges or Deputy District Judges who attend establishments to hear the cases referred to them and follow the independent punishment guidelines issued by the Chief Magistrate.
23.The normal test for seriousness, as set out in Prison Service Instruction 05/2018, Prisoner Discipline Procedures, is whether the offence poses a very serious risk to order and control of the establishment, or the safety of those within it. Each case will be assessed on its merits, but example charges include serious assaults, any offence motivated by a protected characteristic under the Equality Act 2010, fighting, denial of access to any part of the prison, endangering health and safety, escape, possession of unauthorised articles, drug smuggling, refusals to undertake drug tests or obey a lawful order related to control issues.
24.To reduce the build-up of cases during the Covid-19 period, when IA visits would be limited, the normal guidance on cases to be referred has been revised, in agreement with the Chief Magistrate, to a non-exhaustive list including: assault against staff, assault with weapon/sustained attack, racially aggravated assault, detaining any person against their will, denial of access to any part of the prison, fighting with sustained attack/multiple incidents, intentionally endangering health and safety of others, escape and setting fire to any part of the prison.
A shortage of IAs during the pandemic
25.Ordinarily, the Chief Magistrate supplies approximately 100 judges to meet the demand from HMPPS to hear cases. However, many of them fall into the vulnerable category in relation to Covid-19 or have been redeployed to cover the courts in the place of lay judges.
26. In accordance with the Prison and YOI Rules, a prisoner who has been charged is given a full opportunity of hearing what is alleged against them and of presenting their own case. They are also given the opportunity to be legally represented at an inquiry heard by an IA.
27.Under Prison Rule 53(3)(b)/YOI Rule 58(3)(b), IAs are required to first inquire into a charge within 28 days of it being referred to them by the adjudicating governor, save in exceptional circumstances. As an immediate response to the pandemic, MoJ applied the ‘exceptional circumstances’ provision but it has become apparent that extending the period for inquiry in this way is not an appropriate response over an extended period because cases risked being dismissed due to the amount of time that had passed before the IA was able to hear the charge. That is why these modifying Rules have been put in place.
28.Paragraph 7.5 of the EM states that delay:
“ … could undermine the integrity of the adjudication system, send a message of impunity in prisons and risk employee relations. The new rule will therefore enable the Chief Magistrate to refer charges back to the governor, who will [have 14 days] to respond in three ways (as they already can under the Prison and YOI Rules): i) a dismissal; ii) continue with the charge at governor adjudication level; or iii) determine the charge is sufficiently serious that it must be dealt with by an IA and refer to the IA again.”
29.Adjudicators (both governors and IAs) must decide whether proceeding after a delay or adjournment would be contrary to the principles of natural justice. The specific factors that need to be considered in making that decision are:
- The availability of witnesses (which includes an assessment of how significant/important a particular witness might be in the context of a particular case);
- Any deterioration in the quality of the evidence as a result of the passage of time, including physical/tangible evidence, and the memory of key witnesses being weakened;
- Any other reason why delay may have caused unfairness, in the sense of having undermined the prisoner’s ability to present his own case properly (e.g. in the intervening period, the prisoner has suffered a serious deterioration in his health).
30.MoJ is exploring video conferencing options: “Virtual Meeting Rooms (VMR) are being delivered to prisons across fixed point and laptop devices in all but 22 prisons, and a phased implementation of live services has started in 26 prisons.”
Timescales
31.These provisions are applied nationally when the conditions of the “coronavirus period” are met, that is during a transmission control period, as declared by the Secretary of State for Health, and the subsequent transition period (initially three months, with the Secretary of State for Justice able to extend this for up to one month at a time, to a maximum of six months in total).
32.MoJ states in supplementary material that
“the provisions set out in the SI are designed to give Governors the flexibility they need to respond to the coronavirus pandemic; they do not mandate that the Governor must follow a more restricted regime. Therefore, as the situation evolves, it is possible that certain prisons will ease some measures of the restricted regime where these are no longer required to ensure the health of prisoners and staff, as appropriate to the local context of the prison.”
33.While understanding the necessity of these protections, we are concerned that other welfare issues may arise if prisoners, particularly young offenders, are denied visits for an extended period of time. We note that each Governor will use their discretion on the particular circumstances at their institution, but MoJ states that visits were temporarily suspended on 24 March at the start of the declared transmission control period. Even if the transmission control period ended today, these Regulations would potentially allow the continued denial of visits for up to six months during the transition period, that is currently almost until Christmas. We note the mitigations that MoJ is introducing but highlight the need to balance prisoners’ mental and physical health appropriately.
1 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).
2 See Report on Abortion (Northern Ireland) Regulations (SI 2020/345), Joint Committee on Statutory Instruments (JCS9), 10th Report, Session 2019-21 (HL Paper 58). The No. 2 Regulations were cleared without comment in the JCSI’s 12th Report, Session 2019-21 (HL Paper 64).
3 11th Report, Session 2019-21 (HL Paper 49).
4 Ibid.
5 Secondary Legislation Scrutiny Committee evidence page: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/8/scrutiny-evidence/.
6 The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) recommendations are set out in full in Appendix 1 to our 11th Report.
7 Already published on our website https://committees.parliament.uk/publications/991/documents/7764/default/.
8 Following the judgment of the European Court of Human Rights in Ezeh and Connors v the United Kingdom 2003, where additional days are in contemplation, Article 6 (right to a fair trial) applies and so the charge must be heard by an independent and impartial tribunal.