Abortion safe zones within devolved powers: UKSC
The Northern Ireland Assembly bill to establish "safe access zones" round abortion clinics and related premises, within which anti-abortion protests are prohibited, does not infringe the European Convention on Human Rights and is within legislative competence, the UK Supreme Court ruled today.
A court of seven Justices gave the unanimous ruling on a reference by the Attorney General for Northern Ireland on the Abortion Services (Safe Access Zones) (Northern Ireland) Bill, passed by the Northern Ireland Assembly on 24 March 2022. The bill is primarily designed to protect the right of women to access abortion and associated sexual and reproductive health services.
Clause 5(2)(a) makes it a criminal 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". Protected persons include patients, persons accompanying them, and staff who work at the premises where abortion services are provided.
Like the Scottish Parliament, the Northern Ireland Assembly has no legislative competence to enact a provision if it is incompatible with any of the rights protected by the European Convention on Human Rights.
The reference was brought because of concerns that, without a defence of reasonable excuse, clause 5(2)(a) disproportionately interferes with anti-abortion protesters’ rights to freedom of thought, conscience and religion, freedom of expression, and freedom of assembly, rights protected by articles 9, 10 and 11 of the Convention.
Justices who heard the case were Lord Reed (President of the court), Lord Kitchin, Lord Burrows, Lady Rose and Lord Lloyd-Jones, along with Lord Carloway, Lord President of the Court of Session, and Dame Siobhan Keegan, Lord Chief Justice of Northern Ireland. All agreed with the judgment given by Lord Reed.
In the judgment, Lord Reed first confirmed that a provision of devolved legislation such as clause 5(2)(a) would only be outside legislative competence because it is incompatible with Convention rights if it would give rise to an unjustified interference with those rights in all or almost all cases.
Referring to the cases of Director of Public Prosecutions v Ziegler [2021] UKSC 23 and Director of Public Prosecutions v Cuciurean [2022] EWHC 736 (Admin), he then held that, during a criminal trial, it is not always necessary to assess whether a conviction for an offence would be a proportionate interference with a particular defendant’s rights under articles 9, 10 and 11: the ingredients of an offence could in themselves ensure that a conviction would be compatible with those Convention rights, even if the offence did not include a defence of lawful or reasonable excuse.
"The determination of whether an interference with a Convention right is proportionate is not an exercise in fact-finding", he observed. "It involves the application, in a factual context (often not in material dispute), of [a] series of legal tests". As a result, it did not necessarily need to be conducted by the body responsible for finding the facts at any trial.
Regarding the question referred, the court recognised that although not all anti-abortion protest activities were protected by the Convention, clause 5(2)(a) does restrict the exercise of protesters’ Convention rights. However, this restriction could be justified.
First, the restriction of the exercise of Convention rights was prescribed by law. Secondly, clause 5(2)(a) pursued a legitimate aim in seeking to ensure that women had access to advice and treatment relating to the lawful termination of pregnancy under conditions which respected their privacy and dignity, thereby protecting public health. It was also designed to enable staff who work at abortion clinics and related premises to attend their place of work without being intimidated, harassed or abused. These aims fell within the qualifications in articles 9(2), 10(2) and 11(2) of the Convention. Furthermore, the right to access health care in conditions of privacy and dignity, and the right to pursue employment, were protected by article 8 of the Convention.
Thirdly, the restrictions imposed by clause 5(2)(a) were proportionate. The clause was not unduly restrictive: rather, it was rational and necessary if the bill was to achieve its intended aims. A defence of reasonable excuse would render it less effective, and it struck a fair balance between competing rights.
Lord Reed added that in reaching this conclusion, the court had had regard to a number of following considerations:
- the context was a highly sensitive one in which the protection of the private lives and autonomy of women was of particular importance;
- women who wished to access lawful abortion services had a reasonable expectation of being able to do so without being confronted by protest activity designed to challenge and diminish their autonomy and undermine their resolve;
- the bill only prevented anti-abortion protestors from exercising their Convention rights within designated zones: they were free to protest anywhere else;
- the women and staff protected by clause 5(2)(a) were a captive audience who are compelled to witness activity that was unwelcome and intrusive;
- the bill was intended to implement the UK’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women
- the maximum penalty under clause 5 was a fine of £500;
- in a sensitive context like this one, states had a wide margin of appreciation in striking a balance between competing Convention rights.
For all these reasons, the court was satisfied that the restrictions imposed by clause 5(2)(a) were justifiable, and that clause 5(2)(a) was within the Assembly’s legislative competence.
The Scottish Government has been awaiting the result of this case, being sympathetic to similar legislation in Scotland. A proposal for a member's bill has been lodged by Green MSP Gillian Mackay.