Human rights: Abortion, protests and safe access zones

In Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland Bill) [2022] UKSC 32 (7 December 2022), seven Justices of the UK Supreme Court (“UKSC”) determined whether clause 5(2)(a) in the referred bill was outside the legislative competence of the Northern Ireland Assembly because it would disproportionately interfere with protesters’ rights to express opposition to the provision of abortion treatment services.

Background

In February 2018, the United Nations Committee on the Elimination of Discrimination against Women (“CEDAW”) published a highly critical report on the provision of abortion services in Northern Ireland. The bill was intended to protect the right for women to access abortion treatment services, and implement recommendations made by CEDAW. It sought to address the issue of women, accompanying persons and staff being subjected to pressure by anti-abortion protesters when attending protected premises, i.e. premises where treatment for lawful termination is offered. “Safe access zones” adjacent to protected premises would be established, consisting of the premises and the public area lying within 100m from each entrance to, or exit from, those premises.

Clause 5(2)(a) would make it an offence “to do an act in a safe access zone with the intent of, or reckless as to whether it has the effect of – influencing a protected person, whether directly or indirectly”.

The Attorney General submitted that this provision was a disproportionate interference with the freedom of conscience, speech and assembly of anti-abortion protesters and demonstrators: rights protected by articles 9-11 of the European Convention on Human Rights. Since clause 5(2)(a) established an offence, unqualified by any defence of lawful or reasonable excuse, it could not be read or applied in a manner to enable an assessment of the proportionality of protesters’ Convention rights.

Given the significance of the bill, interveners included the Lord Advocate, the Northern Ireland Human Rights Commission and JUSTICE.

Preliminary questions

The UKSC confirmed, inter alia, the applicable test in determining whether a provision is incompatible with Convention rights by reason of disproportionate interference. It was referred to Christian Institute v Lord Advocate [2016] UKSC 51, and In re McLaughlin [2018] 1 WLR 4250.

The rationale of Christian Institute was that the striking down of a provision in advance of its application to particular facts is only justifiable if the court is satisfied that it is incapable of being applied in a way which is compatible with Convention rights, whatever the facts may be (para 14). Following scrutiny of the two authorities, the UKSC confirmed that that remained the test (para 19).

It stated that it is not necessary for an offence that is liable to interfere with an individual’s rights under articles 9-11 to include a defence of lawful or reasonable excuse (para 64).

Safe access zones: necessary?

The UKSC followed the expected structure in analysing questions arising in relation to Convention rights. It considered whether clause 5 restricted the exercise of rights protected by articles 9-11. Following analysis of acceptable behaviour that clause 5(2) would restrict, it recognised that it imposed such a restriction (paras 111-112).

All parties accepted that clause 5 imposed a restriction on the exercise of Convention rights that is prescribed by law. It was further accepted that clause 5(2)(a) pursued a legitimate aim, to ensure that women have access to premises at which treatment or advice concerning the lawful termination of privacy is provided, under conditions respecting privacy and dignity (para 114).

The UKSC then determined whether the restriction was “necessary in a democratic society”. It was accepted by all parties that the protection of rights of patients and staff is a sufficiently important objective to justify the limitation of rights under articles 9-11. The court analysed the impact that the exclusion of clause 5(2)(a) would have on criminal proceedings, concluding that the clause was not only coherent with the legitimate aim pursued but necessary to achieve its aim. A defence of reasonable excuse would in its view render clause 5(2)(a) less effective (paras 122-123).

Following an analysis of both ECtHR jurisprudence and that emanating from Canada and the United States, the UKSC considered that clause 5(2)(a) struck a fair balance between the competing rights of patients, staff and protesters. In reaching this conclusion, it had regard to the protection of the private lives and autonomy of women being of particular importance (para 125). Women have a reasonable expectation of accessing protected premises without witnessing protesters. These considerations were contrasted against the limited incursion on protesters, whose rights were restricted only within the safe access zones. The UKSC reaffirmed that states have a wide margin of appreciation in striking the balance between competing Convention rights (para 131).

Commentary

The UKSC held that clause 5(2)(a) was compatible with the Convention rights of protesters and within the legislative competence of the Assembly. It affirmed previous authorities that it is not essential to assess whether a criminal conviction is a proportionate interference with an accused’s rights under articles 9-11. The UKSC concluded that once a right was established in law through a democratic process, it should not be obstructed by opponents of the legislation relying on liberal values protected by the Convention. It will be interesting to observe how the judgment will be applied in subsequent disputes.