Supreme Court upholds safe spaces legislation banning protests outside abortion clinics

The Supreme Court has today upheld the Abortion Services (Safe Access Zones) (Northern Ireland) Bill, clause 5(2)(a) of which seeks to prohibit any act done with the intention of influencing those accessing abortion services or which have that effect. The Bill was passed by the Northern Ireland Assembly but referred to the Supreme Court by the Attorney General for Northern Ireland, who argued that it breached Articles 9 (freedom of thought, conscience and religion), 10 (freedom of expression) and 11 (freedom of assembly) ECHR. The effect of the Bill being incompatible with the ECHR would be that it is outside the legislative competence of the Northern Ireland Assembly. Clause 5(2)(a) of the Bill says the following: “It is an offence for D 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, in connection with the protected person attending protected premises for a purpose mentioned in section 3.” The Attorney General argued that clause 5(2)(a) amounted to a breach of the Article 9, 10 and 11 ECHR rights of those protesting outside abortion clinics, particularly as the offence does not incorporate a reasonable excuse defence. The Lord Advocate (the senior Law officer for the Scottish Government) intervened to argue that the Bill was compatible with the ECHR, as did the Northern Ireland Human Rights Commission and JUSTICE. The Supreme Court unanimously found that the Bill was compatible with Articles 9, 10 and 11 ECHR. In particular, Lord Reed’s judgment found clause 5(2)(a) proportionate given:

1. The present context is one in which the protection of the private lives and autonomy of women, as protected by Article 8 ECHR, was of particular importance. The evidence indicated that the protests were frequent and had a significant adverse impact on women and girls seeking treatment.
2. There was no way for women to arrive at or leave the clinics except through public spaces where the protests would take place.
3. The ECHR does not provide any freedom of forum on protestors to make their point wherever they wish. They are still able to protest at other places.
4. The context made it acceptable to have a general rule prohibiting any protest rather than requiring individual women to make complaints about specific conduct.

Overall, Lord Reed concluded that:

“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.”

Of more general importance for human rights practitioners, Lord Reed found that:

1. The test for determining whether primary legislation breaches ECHR rights in abstract is whether the provision will give rise to an unjustified interference with ECHR rights “in all or almost all cases”. This test from Christian Institute v Lord Advocate [2016] UKSC 51 is the correct test rather than the suggestion in In re McLaughlin [2018] UKSC 48 that what mattered was whether there will be a breach “in a legally significant number of cases”.
2. The Supreme Court in Director of Public Prosecutions v Ziegler [2021] UKSC 23 was wrong to say that the determination of proportionality in an ECHR case involved a “fact-specific enquiry which requires the evaluation of the circumstances in the individual case”. Rather, “[i]t involves the application, in a factual context (often not in material dispute), of the series of legal tests set out at para 24 above, together with a sophisticated body of case law, and may also involve the application of statutory provisions such as sections 3 and 6 of the Human Rights, or the development of the common law.” It is also possible for a general legislative measure to ensure its application in individual circumstances will be proportionate without the need for evaluation in individual circumstances.
3. Where a defendant to a protest-related criminal charge relies on Articles 9-11 ECHR, a court should ask: (i) whether the ECHR is engaged; (ii) if so, whether the offence is one where the ingredients of the offence themselves strike the proportionality balance; (iii) if not, whether there is a means by which the proportionality of a conviction can be ensured – e.g. a reasonable excuse defence or s.3 of the Human Rights Act 1998.

The case is particularly relevant given that clause 9 of the Public Order Bill currently making its way through Parliament would create a similar offence in England and Wales. In addition, the Proposed Abortion Services Safe Access Zones (Scotland) Bill is currently before the Scottish Parliament. The judgment can be found here. The case has been reported on the BBC, the Guardian and the Independent. David Blundell KC and Yaaser Vanderman acted for the Northern Ireland Human Rights Commission.