I had better keep going to obey your ruling, Madam Deputy Speaker, and I want to reply to this point, which has been made in an intervention.
In addition, the Supreme Court, again in non-binding comments, unanimously found that the law on abortion in Northern Ireland was compliant with the European convention on human rights in restricting access to abortion on the grounds of non-fatal disabilities. This part of the judgment is conveniently often forgotten in the rhetoric of proponents of change in the law on abortion in Northern Ireland. One might instead think, listening to the arguments made by some, that the Court found that the decriminalisation of abortion is required on the basis of human rights. That is simply false and needs to be understood as such. Individuals are of course entitled to argue for the decriminalisation of abortion, but they are not entitled to make this claim on the basis of human rights conventions or jurisprudence.
A future panel of the Supreme Court might well make a similar finding to that made in the Northern Ireland Human Rights Commission case. Indeed, a properly constituted case is currently before the courts in Northern Ireland with regard to fatal foetal abnormality. However, even if that were the case, the incompatibility
to be resolved would be on the narrow grounds of some of the most tragic and difficult cases imaginable—that of fatal foetal abnormality, not on the grounds of decriminalisation of abortion. Furthermore, section 4(6) of the Human Rights Act makes it clear that even had the Supreme Court determined that a piece of primary legislation was incompatible—which it did not in this case—and made such a declaration, a declaration of incompatibility
“does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given”
and
“is not binding on the parties to the proceedings in which it is made.”
Indeed, Baroness Hale pointed out that, even in cases where there is a ruling of incompatibility, that does not compel the legislature to change the law. It still has what she describes as a “do nothing” option.
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That leads me on to CEDAW and the report of the Committee on the Elimination of Discrimination against Women. I remind the House of the legal opinion of Professor Mark Hill QC, which points to the reality of CEDAW and the status of the committee. On a point of fact, which needs to be reiterated due to the number of times this has been claimed, the CEDAW committee and the United Nations are not coterminous. The CEDAW committee does not represent the entirety of the United Nations. Professor Hill argues cogently that there is no requirement for the UK or Northern Ireland to act in response to the CEDAW committee’s Northern Ireland report, first because there is no right to abortion under the convention, and secondly because the committee does not have the power to make binding resolutions on the UK. My hon. Friend the Member for Congleton (Fiona Bruce) quoted Professor Hill’s report in some detail, so I do not need to repeat it.
Far too much weight has been put on the recommendations of the CEDAW committee. To imply that the Secretary of State should consider taking action in law as a result is entirely inappropriate. We need to be very careful with regard to the precedent we would set if we passed these amendments and new clauses. Do we want to give reports of UN treaty monitoring bodies this kind of status, irrespective of the topic?
The United Kingdom Supreme Court certainly does not treat reports of the CEDAW committee with the kind of authority that these amendments do. As Lord Wilson, with whom Lord Reed and Lord Hughes agreed, put it in R (A and B) v. Secretary of State for Health—this is an important point:
“The conventions and the covenant to which the UK is a party carefully stop short of calling upon national authorities to make abortion services generally available. Some of the committees go further down that path. But, as a matter of international law, the authority of their recommendations is slight”.
These amendments and new clauses are not required under human rights jurisprudence and could lead to an unhelpful precedent. They tear up the devolution settlement and are a naked power grab that must be rejected.