Supreme Court finds legislation banning protest outside abortion clinics lawful

In REFERENCE by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32, a 7-Justice panel of the Supreme Court had to consider whether legislation that banned protests (and other similar activity) outside abortion clinics breached the Article 9/10/11 ECHR rights of those involved.

The background is unusual. In March 2022, the Northern Ireland Assembly passed the Abortion Service (Safe Access Zones) Bill. The purpose of the Bill is to ensure that women and girls accessing abortion services can do so without interference and, in doing so, protect their Article 8 ECHR rights.

Crucially, clause 5(2) of the Bill makes it a criminal offence to do the following:

“to do an act in a safe access zone with the intent of, or reckless as to whether it has the effect of

(a) influencing a protected person, whether directly or indirectly,

(b) preventing or impeding access by a protected person, or

(c) causing harassment, alarm or distress to a protected person”

The “safe access zone” is an area of a certain size around premises offering abortion services – the Bill refers to an area of 100m as the default size but this can be increased by a further 150m. A “protected person” is someone accessing the services, someone accompanying that person, or someone working in the protected premises.

The Attorney General for Northern Ireland referred the Bill to the Supreme Court, arguing that clause 5(2)(a) breaches the Articles 9, 10 and 11 ECHR rights of individuals who wish to use the area next to abortion clinics for the purpose of, e.g., protesting, praying, handing out leaflets, etc. If such a breach existed, it would mean the Bill was outside the competence of the Northern Ireland Assembly and it could not pass int law. As against that, there was evidence before the Court of how even the mere presence of protestors outside abortion clinics and peaceful attempts to influence women could have a seriously harmful impact on those women and their healthcare decisions.

The Supreme Court unanimously found that the Bill did not breach the ECHR rights of those who wished to carry out the activities set out above near abortion clinics. In particular, it considered that:

1. The protests were frequent and had a significant adverse impact on women and girls seeking treatment.
2. There was no way for them to avoid those protests if they wanted to obtain treatment.
3. The ECHR does not provide any freedom of forum – i.e. the protestors were able to make their point elsewhere.
4. In these circumstances, it was acceptable to have a general rule criminalising all protest in this area rather than requiring individual complaints to be made about specific behaviour that may have amounted to pre-existing criminal offences.

This conclusion and reasoning was supported by similar judgments made in the highest courts in Canada and Australia, to which the Supreme Court made reference. Lord Reed, who delivered the judgment, ended with the following forceful conclusion:

“156. 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 based, some might think ironically, on the liberal values protected by the Convention. A legal system which enabled those who had lost the political debate to undermine the legislation permitting abortion, by relying on freedom of conscience, freedom of expression and freedom of assembly, would in practice align the law with the values of the opponents of reform and deprive women of the protection of rights which have been legislatively enacted.”

Yaaser Vanderman, led by David Blundell KC, represented the Northern Ireland Human Rights Commission.