Summary of Commons’ Report stage of Scotland Bill and devolving competence for abortion legislation

On 9 November 2015, the Scotland Bill 2015-16 completed its Report and third Reading stages in the House of Commons and now proceeds to the Lords. Among the 100-plus amendments to be considered in the day’s six-hour slot was Government new clause 15—Abortion which removes the specific reservation of abortion in part 2 of schedule 5 to the Scotland Act 1998 thereby devolving legislative competence on the subject-matter of abortion to the Scottish Parliament.

Although the amendment was passed by 350 votes to 183, it is worthwhile highlighting some of the arguments put forward in the limited time available for the debate, [HC Hansard 9 Nov 2015 Vol 602(67) Col 136]. More general points on the government’s approach to the Bill and the lack of time allocated for its scrutiny were made by Pete Wishart (Perth and North Perthshire) (SNP), [Col 46].

Government new clause 15

 The Secretary of State for Scotland, David Mundell, opened the debate on abortion, stating:

“[the] Smith Commission agreement also recommended the devolution of abortion legislation, given that the parties to the agreement were strongly of the view that the anomalous reservation needed to be corrected. As I announced last month, UK and Scottish Ministers and officials have held discussions on the matter and reflected very carefully about the practicalities of devolution in this area”, [Col 136].

Government has in a discussion with the Scottish Government and has engaged with women’s groups in Scotland. The groups to whom the Minister has spoken are clear that abortion can be devolved.

“Those groups are clear that the Scottish Parliament has the capacity to deal with the issue of abortion, but they want its devolution to be handled sensitively. I think that we are in the process of doing that. The First Minister of Scotland has made it very clear that she has no plans to change the existing arrangements in relation to abortion. The hon. Member for Edinburgh South (Ian Murray) will know that devolving abortion to the Scottish Parliament will not simply lead to a change in the law in Scotland; that will happen only if the Scottish Parliament makes such a decision”.

Reiterating the concerns she expressed prior to the debate, Yvette Cooper (Normanton, Pontefract and Castleford) (Lab) pointed out that that it is not in the gift of any one Minister, (i.e. the  The First Minister of Scotland), to make such a decision. She indicated that the government is:

“actually proposing a very substantial change to the framework of abortion legislation. In fact, [the Secretary of State for Scotland[, has done no proper, substantial consultation. We will have just a few minutes in the House to discuss something that is so substantial and such a big change to the Abortion Act 1967. Does he really think that a few minutes’ discussion now, and the limited conversations between Scotland Office and Scottish Government officials, is the right way to do this?” [Col 137].

She continued:

“Does the Secretary of State not realise that he is setting up two different systems, one for Scotland and one for England and Wales, when we know from other parts of the world that that leads to women having to travel for abortions at a vulnerable time? That issue of principle—deciding whether it is right for people to have to travel—is important. I hope that many of our Scottish colleagues will agree with us about the importance of the 1967 Act. I know that there is strong agreement from the First Minister. However, there is an issue of principle in whether we think it is right to increase the likelihood of women having to travel at a vulnerable time. Does he think it is right to do that without proper consultation with women across not just Scotland, but England— [intervention]” [Col 137].

Winding up this limited debate on this issue, David Mundell said, [139]:

“… We are debating whether the Scottish Parliament should have responsibility on this issue, and I believe that it has the capacity to make decisions in an informed way. It is becoming offensive to suggest otherwise. When we debate other responsibilities for the Scottish Parliament, we do not do so based on its capacity or the idea that it might fall under undue influence and make the wrong decision.

I think I have made the position clear, but I restate that we will continue to work closely with women’s groups and other interested parties to ensure that the devolution of abortion law is as smooth as possible. As I have repeatedly said, there will be no change simply because of devolution, because the Scottish Government and the First Minister have stated that they do not intend to change the existing provisions”.

Comment

In an article in The Guardian, the director for Amnesty International in Scotland, Naomi McAuliffe, highlighted that a recent opinion poll for her organisation had suggested that attitudes to abortion in Scotland are no more repressive, and sometimes more progressive, than in England and Wales. Nevertheless, concerns have been expressed by both pro-life and pro-choice groups that devolution of legislation on abortion could result in unwelcome changes. Echoing Yvette Cooper’s concerns, she commented:

“…we would like to brief [MSPs] on the tactics used by anti-choice groups, [i.e. such as 40 Days of Life and Abort67 identified by Yvette Cooper]. One thing we will be monitoring very closely are the activities of these mainly US-funded groups in Scotland because we have recently seen an upswing in their aggressive and intimidating campaigning in the rest of the UK.”

The article also reports that pro-choice campaigners have said privately there is an opportunity for “permanent and progressive” change, including the removal of the requirement for two doctors’ signatures before a termination and, potentially, complete decriminalisation. Unsurprisingly, others such as SNP MSP John Mason see devolution as an opportunity to impose stricter limits, and would consider pressing for a review of the legislative provisions.

If, as seems likely, abortion law is devolved to Scotland, it would be unusual if campaigners on either side did not attempt to seek changes or at least test the commitment of the Scottish government. Whilst many would agree that the Abortion Act 1967 is far from perfect and would benefit from revision, one can appreciate the reluctance of the First Minister of Scotland to initiate legislative change.