Supreme Court: Northern Ireland bill enabling ban on protests outside abortion clinics is intra vires

About this case:

• Citation:
  [2022] UKSC 32
• Judgment:
  External link
• Court:
  UK Supreme Court
• Judge:
  Lord Reed

The court found that placing limitations on where abortion protests could take places was a proportionate restriction of ECHR rights, noting that “freedom of speech does not include a right to a captive audience”.

Background

In 2022, the Northern Ireland Assembly passed the Abortion Services (Safe Access Zones) (Northern Ireland) Bill, which intended to protect the rights of women to access services relating to the lawful termination of pregnancy.

It makes provision for designated “safe access zones” adjacent to where these services are provided, and prohibits certain behaviour in these areas. Clause 5(2)(a) makes 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 – (a) influencing a protected person, whether directly or indirectly”.

The Attorney General for Northern Ireland referred this provision to the Supreme Court to determine whether this fell outside the legislative competence of the Assembly, given that it impacts on ECHR rights.

Protests

In 2018 the Royal College of Obstetricians and Gynaecologists and the Faculty of Sexual and Reproductive Healthcare published their submission to a Home Office review of abortion clinic protests. They reported “serious concerns regarding the ongoing intimidation and harassment of patients and staff outside facilities providing abortion services in the UK”.

They expressed their support for the establishment of zones outside clinics where anti-abortion activity could not take place. Accounts from the UK and Northern Ireland described these protests as involving harassment, including filming women seeking abortion services; being given unsolicited advice which went against medical advice; being told that abortion was linked to breast cancer; and being spat on.

However, the Attorney submitted that this provision was a disproportionate interference with the freedom of conscience, speech and assembly of anti-abortion protesters and demonstrators, rights which are protected by ECHR Articles 9, 10 and 11.

The Attorney argued that the bill created an offence which was not qualified by any defence or lawful excuse, which was disproportionate, and fell outside the legislative competence of the Assembly.

The Northern Ireland Human Rights Commission submitted that any interference with Convention rights was inherently proportionate.

Consideration

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, or 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 the 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.

Conclusion

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.