Third Report Contents

Drawn to the special attention of the House

Abortion (Northern Ireland) Regulations 2022 (SI 2022/554)

Date Laid: 18 May

Parliamentary procedure: Made affirmative

This is the latest stage in the legislation to provide abortion in Northern Ireland on approximately the same terms as in the rest of the UK. These Regulations do not alter the policy set out in the Abortion (Northern Ireland) (No 2) Regulations 2020 but seek to remedy delays in its implementation. The 2022 Regulations remove the need for agreement to commission services in the Executive Committee of the Northern Ireland Assembly and provide the Secretary of State with the powers to do anything that a Northern Ireland Minister or Department could do, but this is strictly limited to the purposes of paragraphs 85 and 86 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

The powers taken under these Regulations raise significant issues around devolution and the interplay of laws that we are not qualified to comment on. However, the House’s understanding of the situation is unlikely to be helped by the Explanatory Memorandum to this instrument, which does not adequately explain the scale and nature of the problems, the way that the powers provided for in these Regulations may be used, or how the Government anticipate this intervention being effective when a previous Direction has been ignored.

This Report provides additional factual information which may assist the House in the forthcoming debate.

These Regulations 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.

1.This is the latest stage in the legislation to provide abortion in Northern Ireland on approximately the same terms as in the rest of the UK. These Regulations do not alter the principles of the policy, which were discussed in some depth in our previous reports,1 but seek to remedy delays in its implementation. The instrument was laid by the Northern Ireland Office (NIO) with an Explanatory Memorandum (EM) and brought into effect the following day using the made affirmative procedure.

Background

2.The Abortion (Northern Ireland) Regulations 2020 (“the lapsed Regulations”) decriminalised abortion in Northern Ireland when carried out by a “registered medical professional” (as defined) and set requirements for the provision of abortion services in Northern Ireland.

3.The lapsed Regulations were laid at the start of the pandemic but, because the House was at that stage unable to vote on them, they were replaced in May 2020 with the materially identical Abortion (Northern Ireland) (No. 2) Regulations 2020 (“the No 2 Regulations”). These established the core requirements for abortion services, which now apply:

4.The Regulations were made to fulfil section 9 of the Northern Ireland (Executive Formation etc.) Act 2019 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):2

5.However, by the deadline of 31 March 2021 only some services had been provided and they were not formally commissioned or supported by the Northern Ireland Department of Health (DoH). The Abortion (Northern Ireland) Regulations 2021 (“the 2021 Regulations”) were therefore laid to confer power on the Secretary of State to issue a “Direction”3 to require the relevant authorities in Northern Ireland to take action to implement the CEDAW recommendations. These 2021 Regulations contained a new deadline of 31 March 2022.

6.The most recent set of Regulations, the Abortion (Northern Ireland) Regulations 2022 (“the 2022 Regulations”), do not alter the policy or content of the No 2 Regulations in any way. Full details of the CEDAW recommendations and the legislation’s requirements are set out in our previous reports on the Regulations mentioned above. On each occasion we received a number of submissions from Parliamentarians and organisations who objected to the proposals; their comments are published online and the Government’s responses to the points made were included in each of our Reports. The links are set out below.

Table 1: Submissions Received

Lapsed Regulations

11th Report Session 2019–21

Submissions received

No 2 Regulations

16th Report Session 2019–21

Submissions received

2021 Regulations

51st Report Session 2019–21

Submissions received

The 2022 Regulations

7.Full provision of the services outlined in the No 2 Regulations was not in place by the extended deadline of 31 March 2022 and is still not yet available in Northern Ireland, and so the latest step has been taken to allow the Secretary of State to intervene. Some urgency is implied because the 2022 Regulations follow the made affirmative procedure and were brought into immediate effect, but the reason for the accelerated process is not made clear.

8.The 2022 Regulations have two main effects:

9.Although not mentioned in the EM, we note that an amended Direction5 was also issued which came into effect on 21 May 2022. It includes the same requirements for the DoH to commission abortion and contraception services, and to provide scientifically sound information about them, as contained in the 2021 Direction, but it removes certain sections made redundant by the 2022 Regulations.

10.We note that on the day the 2022 Regulations were made, there was a Written Statement, from Brandon Lewis, Secretary of State for Northern Ireland,6 stating his intention to use these powers:

“If the Department of Health does not commission and fund abortion services as directed, I will intervene further. To ensure I have all the information required in those circumstances, a small team that I am establishing in the Northern Ireland Office will work alongside the Department of Health and take this forward.”

The current position

11.Given the sensitivity of the subject matter and the extensive powers being taken, we were surprised at the paucity of information provided in the EM. It tells us that the DoH has not acted on the Direction to commission and fund “relevant health care” given to it on 22 July 2021, but it does not give any details about what that Direction required other than general references to “abortion healthcare services”.

12.The EM then goes on to say that services are available in only four of five Regional Health and Social Care Trusts and are limited to only providing Early Medical Abortions up to a ten-week gestational limit. It adds that these services were set up as a temporary measure while the DoH progressed commissioning but are liable to collapse if not further funded.

13.We therefore asked a number of questions to try and obtain a better understanding of what is and what is not happening, where the problems lie and how the Secretary of State anticipates using the powers taken.

What provision for abortion is available?

14.In supplementary information the NIO stated that:

“a limited and fragile early medical abortion service has been provided since April 2020. In the absence of a decision by the DoH to commission and fund abortion services, no funding has been provided for the service. It has been maintained due to the dedicated work of committed members of staff. However, workforce planning, including the provision of training, is an essential element of a fully commissioned service. Commissioning and funding is necessary before comprehensive services can be provided and the CEDAW recommendation implemented fully. The Secretary of State is steadfast in his belief that the Department of Health should drive forward the commissioning of abortion services without further delay in Northern Ireland.”

15.The EM says that “services are available in only four of five Regional Health and Social Care Trusts”, so we asked for further information about what services are currently available. The NIO replied:

“The services that are available are largely limited to early medical abortions. Early medical abortions means the use of abortion pills at up to 10-weeks gestation. In the absence of commissioning, there has been no progress on provision of surgical abortion. The vast majority of those who require access to a surgical abortion are required to travel to England to receive care.

Health care in Northern Ireland is provided by 5 regional Health and Social Care Trusts (“HSC Trusts”). The current situation is that 4 trusts (the Belfast Trust, the Northern Trust, the Southern Trust and the South Eastern Trust) are able to provide early medical abortions.

The Western Trust does not have the resources to offer even an early medical abortion service. It stopped being able to offer such services in April 2021. The Northern Ireland Office was made aware on the 17 May 2022 that neighbouring HSC Trusts would provide services to women living within the Western Trust catchment area. The fact remains that between April 2021 and May 2022, women living in the Western Trust catchment area had no access to abortion services, meaning their only options were to travel to England for care, seeking unregulated pills online, or continuing with the pregnancy.

Due to the ongoing lack of commissioning or funding, early medical abortion services offered by the HSC Trusts are extremely fragile. Three of the five HSC Trusts have temporarily suspended services to date.

Beyond abortions being unavailable beyond 10 weeks gestation, our stakeholders have also flagged some significant barriers to accessing services, particularly around women not knowing what services are available in Northern Ireland, or how to access them.”

16.To seek to understand the scale of the problem, we also asked how current service provision compares with standard services available in the rest of the UK. The NIO replied:

“Recent numbers for abortion provision have been affected by Covid travel restrictions and full statistics are not yet available for 2021. DHSC annually releases statistics on the number of women accessing services in England and Wales.7 18.2 per 1,000 women in England and Wales had an abortion in 2020.

The Northern Ireland Department of Health answered an Assembly Question on 11 March 2022,8 and stated that between 31 March 2020—31 January 2022, a total of 2,794 notifications of termination were submitted to the Chief Medical Officer for abortions in Northern Ireland. 371 women from Northern Ireland accessed abortion services in England in 2020, according to figures released by DHSC (DHSC noted that this was reduced because of travel restrictions).9

In 2020, the Northern Ireland Office estimates that around 5.3 women per 1,000 accessed early medical abortion services in Northern Ireland. It should be stressed that the department believes the number of women travelling to England from Northern Ireland in 2020 was reduced by travel restrictions, and an unquantified number of women are being driven to access unregulated services.”

What about the information and education requirements of CEDAW?

17.The NIO states that direction 8 of the Abortion Services Direction 2021, which requires the DoH to secure the provision of an interim service information and referral service, is currently being fulfilled by the British Pregnancy Advisory Service (BPAS) on a temporary basis. But the NIO adds that there has been no progress made towards putting this service on a permanent footing:

“The Department’s understanding is that there is a lack of investment in sexual and reproductive health professionals in Northern Ireland and this has resulted in a regional variation of service provision for contraception amongst HSC Trusts in Northern Ireland.”

18.In relation to education the position may be a little better, as the NIO states:

“The recommendation in paragraph 86(d) of the CEDAW report is that age-appropriate, comprehensive and scientifically accurate education on sexual and reproductive health and rights is made a compulsory curriculum component for adolescents.

Relationships and Sexual Education (“RSE”) is an element of the curriculum in Northern Ireland and there are opportunities for pupils to learn about and explore issues such as abortion. However, progress is required to fully implement the recommendation. The Northern Ireland Office is engaging closely with the Department of Education in Northern Ireland on whether they will take the necessary steps to make RSE as described in the CEDAW recommendation a compulsory part of the curriculum.”

The role of the Executive Committee

19.The 2022 Regulations allow the Northern Ireland Assembly Executive Committee to be bypassed, so we asked why it is a barrier to progress. The NIO replied that directions 3-6 of the Abortion Services Directions 2021 imposed obligations on the DoH, but it had not complied by the 31 March 2022 deadline, nor had DoH put proposals for commissioning services to the Executive Committee. The NIO explained the situation as follows:

“The Executive Committee of the Northern Ireland Assembly is provided for in section 20 of the Northern Ireland Act 1998. It is chaired by the First Minister and deputy First Minister and consists of them and the Northern Ireland Ministers. Section 20(3) and (4) of the 1998 Act provides that the Executive Committee has the functions of discussing and agreeing upon significant and controversial matters, and matters which cut across the responsibility of more than one Northern Ireland Minister.

Section 28A(5) of the 1998 Act requires the Northern Ireland Ministerial Code to include provision requiring Ministers to bring to the attention of the Executive Committee any matter which ought to be considered by the Executive Committee by virtue of section 20(3) or (4). The Ministerial Code accordingly requires Northern Ireland Ministers to bring such matters to the attention of the Executive Committee.

Section 28A(10) of the 1998 Act provides that a Minister has no Ministerial authority to take any decision in contravention of that requirement.

The position taken by the Minister of Health has been that the action necessary to comply with the Abortion Services Directions 2021 (including the commissioning and funding of relevant health and social care) requires the agreement of the Executive Committee.”

Intervention by the Northern Ireland Secretary

20.The Regulations allow the Northern Ireland Secretary to “intervene directly”, so we asked what the options available to him are. The NIO replied:

“The 2022 Regulations do this by conferring on the Secretary of State the power to do anything a Northern Ireland Minister or department may do for the purpose of ensuring the recommendations of the CEDAW Report are implemented. This means that for that purpose the Secretary of State may exercise the DoH’s statutory functions. Accordingly, the Secretary of State has the power to step in and assume the DoH’s role in the commissioning of the relevant health care.”

21.We therefore asked who or what is to be compelled to comply in the DoH and what recourse there is if it does not comply. The NIO explained:

“Northern Ireland departments (in contrast to departments of the government of the UK) are bodies corporate. They have legal personality. Accordingly, the obligations in both the Abortion Services Directions 2022 and regulation 3 of the 2022 Regulations are imposed on the DoH, rather than the Minister of Health or some other office holder. The function of allocating financial resources, for example, is a statutory function of the DoH (see section 2(3)(c) of the Health and Social Care (Reform) Act (Northern Ireland) 2009).

It is therefore appropriate that a further duty in relation to the allocation of financial resources is imposed on the DoH.

If the DoH does not comply with the duties imposed by the 2022 Regulations or the Directions that failure could be challenged by way of an application for Judicial Review.”

22.We also clarified that this intervention does not cut across the freedom of conscience provisions in regulation 12 of the No 2 Regulations, with the NIO explaining:

“This protection applies to medical professionals and others participating in treatment. It does not relate to the role of the DoH and other health care bodies in commissioning and funding relevant health care.

[The] Explanatory Memorandum to the 2020 Regulations explained the scope of the conscientious objection provision as follows.

“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 fetus, 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.”

Any services that are commissioned as a result of an intervention by the Secretary of State will be in accordance with the existing statutory scheme established by the 2020 Regulations, including regulation 12.

The DoH has been directed to produce guidance for medical professionals to replace the guidance it issued in March 2016 entitled “Guidance for Health and Social Care Professionals on termination of pregnancy in Northern Ireland”. If the DoH fails produce such guidance and it is issued instead by the Secretary of State, care will be taken to ensure that the guidance properly reflects the right to conscientious objection.”

Constitutional position

23.The Constitution Committee’s report on the 2021 Regulations10 highlighted the issues that both the Secretary of State’s Direction, and now his potential intervention, raise in regard to devolution and the interaction of different types of legislation, and of two potentially conflicting Acts:

“The 2021 Regulations raise an important issue concerning devolved competence. On the one hand the Secretary of State cites a statutory duty, arising from section 9 of the 2019 Act, to make the 2020 and 2021 Regulations, alongside a duty to ensure compliance with the UK’s obligations under international law. On the other hand, one of the governing parties in the Northern Ireland Executive opposes the Regulations as an unwarranted interference with the devolution arrangements.”

24.We have received a submission from CARE NI which raises some of these issues, in particular about the devolution position. It is published on our website.11

25.We are also aware that parties both for and against the legislation are seeking Judicial Review of both the No 2 Regulations and the 2022 Regulations, and that those court cases have not yet reached a conclusion. This is not mentioned in the EM but may have a material effect on how the legislation is interpreted and how it may be implemented. A summary of the current position in each case is included at Appendix 2.

Conclusion

26.Our remit is to consider the policy of statutory instruments. The Government’s policy to allow women in Northern Ireland better access to information about their sexual health and, where necessary, abortion, was established by the No 2 Regulations, and the 2022 Regulations do not alter that policy.

27.The powers taken under these Regulations raise significant issues around devolution and the interplay of laws that we are not qualified to comment on. However, the House’s understanding of the situation may not be helped by the EM to this instrument which does not adequately explain the scale and nature of the problems, the way that the powers provided for in these Regulations may be used, or how the Government anticipate this intervention being effective when a previous Direction has been ignored.

28.This report therefore provides additional factual information which may assist the House in the forthcoming debate.

Draft Environmental Principles Policy Statement

Date Laid: 11 May

Parliamentary Procedure: Negative

This draft policy statement on environmental principles is the first such policy statement to have been laid before Parliament under the Environment Act 2021 (“the Act”). It sets out how ministers should apply five environmental principles, which are established under the Act, to support environmental protection and enhancement. Government departments have a statutory duty to have “due regard” to the policy statement when designing policy, and to embed the environmental principles into policymaking. As no explanation of the five principles is offered in the Explanatory Memorandum (EM) that has been laid before Parliament, we have asked the Department for Environment, Food and Rural Affairs to revise the EM.

This is the first draft policy statement to have been laid before Parliament under the Act, setting a precedent for how the House will handle future policy statements. The House may therefore wish to consider the potential scope for a more exacting scrutiny procedure for future policy statements.

We also take the view that it is essential that the practical implementation and effectiveness of the policy statement and the environmental principles will be properly monitored and evaluated by all government departments in scope of the statutory duty. Without such oversight and evaluation across Whitehall, neither the Government nor Parliament will be able to assess whether the policy statement and environmental principles have had any impact, and to what extent they have achieved their purpose.

The draft policy statement 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.

29.This draft policy statement on environmental principles (“policy statement”) has been laid by the Department for Environment, Food and Rural Affairs (Defra), as required under section 18(3) of the Environment Act 2021 (“the Act”), alongside an Explanatory Memorandum (EM). This is the first draft policy statement to have been laid before Parliament under the Act.

Parliamentary procedure and scrutiny

30.Under section 18(4) of the Act, the draft policy statement is subject to parliamentary scrutiny for a period of 21 sitting days.12 During this period, either House may pass a resolution and a committee or committees of either House may make recommendations in respect of the draft policy statement. The Secretary of State is required to lay before Parliament a response to any resolution passed or any recommendation made, as well as a final version of the policy statement.

31.Our remit is to scrutinise all instruments subject to parliamentary scrutiny. We have therefore agreed to consider this draft policy statement on the basis of our terms of reference.13 We understand that the House of Lords Environment and Climate Change Committee is also scrutinising the draft policy statement.

32.As this is the first draft policy statement to have been laid before Parliament under the Act and a precedent is therefore set for how the House will handle future policy statements, the House may wish to consider the potential scope for a more exacting scrutiny procedure for future policy statements.

The five principles

33.The draft policy statement sets out how ministers should apply five environmental principles, which are established under section 17 of the Act, to support environmental protection and enhancement. Government departments have a statutory duty to have “due regard” to the policy statement when designing policy, and to embed the environmental principles into policymaking. Exemptions apply to the armed forces, defence or national security, taxation, spending or the allocation of resources within government (section 19 of the Act).

34.The draft policy statement explains the five environmental principles as follows:

(1)The integration principle proposes that policymakers should look for opportunities to embed environmental protection into the making of policies in all policy areas across government in scope of the statutory duty, where the policy has a potential environmental effect.

(2)The prevention principle means that government policy should aim to prevent environmental harm. This principle should generally be used in preference over the rectification at source principle or polluter pays principle (see below), as these principles are used in instances when prevention cannot be achieved.

(3)The rectification at source principle states that environmental damage should, as a priority, be addressed at its origin to avoid the need to remedy its effects later. This principle should be used to guide the design of policy that addresses or manages environmental damage, or potential environmental damage. Where it is not possible to identify or address all environmental damage at its origin, there should be consideration of trying to contain or limit the environmental harm as much as possible.

(4)The polluter pays principle means that, where possible, the costs of pollution should be borne by those causing it, rather than the person who suffers the effects of the resulting environmental damage, or the wider community. This principle should apply where there is evidence of, or potential for, environmental harm or a negative environmental effect, and prevention of that harm is not possible or proportionate.

(5)The precautionary principle is applicable where there is plausible evidence of a risk that a particular policy could cause serious or irreversible damage to the environment, alongside a lack of scientific certainty about the likelihood and severity of this damage. In applying this principle, policymakers need to make a reasonable assessment, using the best available scientific evidence, of the risk. Risk in this case should be understood as a combination of the likelihood of the environmental damage occurring and its severity.

35.We note that the EM as laid before Parliament does not include any explanation of the principles. The purpose of an EM is to provide Parliament, those affected by changes in the law and the wider public with an accessible, stand-alone, comprehensive explanation; it should not be necessary for the reader to consult other documents in order to achieve an understanding of what the legislation does. We have therefore asked the Department to revise the EM to include a short explanation of each of the five environmental principles.

36.Defra says that the purpose of the principles is to guide ministers and policymakers towards opportunities to prevent environmental damage and enhance the environment, where relevant and appropriate, and that they should be considered and used iteratively from the outset and during subsequent stages in the development of a policy. The Department emphasises that the principles are not rules and cannot dictate policy decisions by ministers, instead they should be used to inform and influence policy design. When considering the potential environmental effects of a policy option, and the possible changes to a policy, policymakers should take a proportionate approach.

37.According to Defra, the Government have already committed to these principles through international processes, such as the Rio Declaration on Environment and Development 1992 which includes commitments on the principles, or the Montreal Protocol on Substances that Deplete the Ozone Layer which refers to the precautionary principle.

Devolution

38.With environmental protection a devolved matter, the policy statement does not apply to policy relating to Wales or Northern Ireland, or to Scotland, except to a small number of policy areas which are reserved in relation to Scotland. According to Defra, a matter of energy policy which is related to Scotland but is reserved according to Schedule 5 to the Scotland Act, for example, would be covered by the policy statement. In such a scenario, UK ministers would have due regard to the policy statement when making the policy and would consult with the Scottish Government in the process, respecting the devolution settlement.

Consultation, monitoring and review

39.The draft policy statement was subject to a 12-week public consultation which closed in June 2021.14 The Secretary of State may revise the policy statement at any time, subject to the same requirements for consultation and parliamentary scrutiny that applied to this first policy statement. We asked Defra whether it would monitor and evaluate how effective the policy statement and environmental principles will be across government in improving environmental protection and sustainable development, and whether there were plans for a future review of the policy statement. The Department told us that:

“It is primarily for Government Departments to ensure the duty is implemented effectively in their policy making. The Office for Environmental Protection will monitor the implementation of environmental law, which will include the requirement to have due regard to the policy statement. Because the Environmental Principles are not intended to dictate policy outcomes, it will not be appropriate to monitor direct impacts on policy outcomes. But we envisage the overall benefits would be picked up indirectly in monitoring as part of the 25 Year Environmental plan.

We do not have any immediate plans to review the principles themselves. The five environmental principles are well established and internationally recognised. These principles have significant case law and history, so their meaning and application is clearly understood and defined. However, this does not preclude another review of the principles in the future.”

40.We take the view that, given that this is the first policy statement under the Act, it is essential that the practical implementation and effectiveness of the policy statement and the environmental principles will be properly monitored and evaluated by all government departments in scope of the statutory duty. Without such oversight and evaluation across Whitehall, neither the Government nor Parliament will be able to assess whether the policy statement and environmental principles have had any impact and to what extent they have achieved their purpose.


1 Secondary Legislation Scrutiny Committee, 11th Report (Session 2019–21, HL Paper 49), 16th Report (Session 2019–21, HL Paper 69) and 51st Report (Session 2019–21, HL Paper 264).

2 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 (23 February 2018): https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/GBR/INT_CEDAW_ITB_GBR_8637_E.pdf [accessed 8 June 2022].

3 The Abortion Services Directions 2021 came into effect on 23 July 2021.

4 An explanation of the role of the Executive Committee of the Assembly is given at para 19. A description of the structure of health services in Northern Ireland is provided in Appendix 1.

5 The Abortion Services Directions 2022 came into effect on 21 May 2022.

6 HC Deb, 19 May 2022. HCWS39 (Commons written ministerial statement).

7 Department of Health and Social Care, ‘Abortion statistics, England and Wales: 2020’: https://www.gov.uk/government/statistics/abortion-statistics-for-england-and-wales-2020/abortion-statistics-england-and-wales-2020 [accessed 8 June 2022].

8 Northern Ireland Assembly, ‘Questions Search Results’: http://aims.niassembly.gov.uk/questions/searchresults.aspx [accessed 8 June 2022].

9 Ibid.

10 Constitution Committee, 23rd Report (Session 2019–21, HL Paper 269).

12 See: section 18, Environment Act 2021.

14 Department for Environment, Food and Rural Affairs, ‘Summary of responses and government response’: https://www.gov.uk/government/consultations/environmental-principles-draft-policy-statement/outcome/summary-of-responses-and-government-response [accessed 8 June 2022].




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