Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill
Background to the Appeal
The Abortion (Safe Access Zones) (Northern Ireland) Bill (the Bill) was 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. It prohibits anti-abortion protests and other specified behaviour within “safe access zones” around abortion clinics and related premises.
This reference concerns clause 5(2)(a) of the Bill, which 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”. The persons protected by clause 5(2)(a) include patients, persons accompanying them and staff who work at the premises where abortion services are provided.
Under the Northern Ireland Act 1998, the power of the Assembly to make legislation (or its “legislative competence”) is limited. A provision of a Bill is outside the Assembly’s legislative competence and therefore not law if it is incompatible with any of the rights protected by the European Convention on Human Rights (the Convention) (sections 6(1) and 6(2)(c)).
The Attorney General for Northern Ireland was concerned that, because clause 5(2)(a) of the Bill does not provide any defence of reasonable excuse, it disproportionately interferes with anti-abortion protesters’ rights to freedom of thought, conscience and religion, freedom of expression, and freedom of assembly. These rights are protected by articles 9, 10 and 11 of the Convention. The Attorney General therefore asked the Supreme Court to decide whether the penal sanction with no provision for reasonable excuse created by clause 5(2)(a) of the Bill was outside the legislative competence of the Assembly because it involves a disproportionate interference with the article 9, 10 and 11 rights of those who seek to express opposition to the provision of abortion treatment services in Northern Ireland.
The court first noted that when relying on Articles 9, 10 or 11, it is important to remember that those articles must actually be engaged. Such rights are not engaged when the conduct in question involves violent intentions, incites violence or “rejects the foundations of a democratic society”.
Further, Article 17 of the Convention provides that the Convention does not confer any right on a person to engage in any activity or perform any act aimed at the destruction or limitation of any of the other rights and freedoms set out in the Convention. Here, the court noted that many of the activities in clause 5 did not fall within the scope of Articles 9 to 11 such as threatening or chasing clinic staff and patients. The court noted “our profound commitment to free and open debate is not a licence for violent or abusive behaviour”.
Counsel for the Attorney submitted that clause 5 was capable of applying to other types of behaviour, such as holding a vigil, praying and engaging in other non-violent demonstrations. The court accepted that clause 5 did impose a restriction on behaviour falling within the scope of one or more of Articles 9 to 11. However, the court found that these restrictions pursued a legitimate aim. The court concluded that clause 5 had the primary purpose of providing safe access to medical treatment for the provision of lawful termination of pregnancy “under conditions which respect their privacy and their dignity, thereby enabling them to access the health care they require, and promoting public health”. A second purpose was to protect staff working in these clinics, ensuring that they had safe access to their place of employment.
The presence of clause 5(2)(a) was, therefore, “not only rationally coherent with the legitimate aim pursued, but is necessary if the legislation is to achieve its intended aim”.
The court also highlighted that the bill did not prevent the exercise of rights under Articles 9 to 11, it merely imposed a limitation on the places where those rights could be exercised. The court also noted that the fine for any breach was minimal.
Ultimately, the court found that women seeking abortion services have a reasonable expectation of being able to do so without having their autonomy challenged and diminished, whether by attempts by protesters to persuade them to change their minds or by protesters, “praying for the souls of foetuses with the intention or effect of provoking feelings of guilt, or by other means calculated to undermine their resolve”.
The restrictions on ECHR rights were justifiable, given the pressing social need to ensure that women could have access to these services.
The court noted, “the right of women in Northern Ireland to access abortion services has now been established in law through the processes of democracy. That legal right should not be obstructed or impaired by the accommodation of claims by opponents of the legislation […] who had lost the political debate”.
For these reasons, the court concluded that clause 5(2)(a) of the bill was not incompatible with the Convention rights for those seeking to express opposition to the provision of abortion services in Northern Ireland. The bill was therefore not outside the legislative competence of the Northern Ireland Assembly.