Abortion Services (Safe Access Zones), REFERENCE by the Attorney General for Northern Ireland [2022] UKSC 32

The Attorney General for Northern Ireland referred a question to the Supreme Court regarding whether clause 5(2)(a) of the Abortion Services (Safe Access Zones) Bill, which criminalises acts intended to influence persons accessing abortion services within designated zones, was outside the Assembly's legislative competence as disproportionately interfering with protesters' Convention rights. The Court held the provision was proportionate and within competence.

Facts

The Northern Ireland Assembly passed the Abortion Services (Safe Access Zones) (Northern Ireland) Bill in March 2022. The Bill sought to protect women accessing abortion services by creating safe access zones around premises providing such services. Clause 5(2)(a) made it an offence to do an act within a safe access zone with intent or recklessness as to influencing a protected person attending for abortion-related services. The Attorney General for Northern Ireland referred the question of whether this provision was outside the Assembly’s legislative competence under section 6(2)(c) of the Northern Ireland Act 1998, on grounds it disproportionately interfered with articles 9, 10 and 11 Convention rights.

Background Evidence

Extensive evidence documented harassment of women accessing abortion clinics, including intimidation, verbal abuse, displaying graphic images, and causing women to defer or abandon treatment. The CEDAW Committee had found grave violations of women’s rights in Northern Ireland and recommended protection from harassment by anti-abortion protesters.

Issues

The central issue was whether clause 5(2)(a), which contained no defence of reasonable excuse, constituted a disproportionate interference with the Convention rights of anti-abortion protesters under articles 9, 10 and 11, thereby rendering it outside the Assembly’s legislative competence.

Judgment

Lord Reed, delivering the unanimous judgment, answered the referred question in the negative, holding clause 5(2)(a) was within the Assembly’s legislative competence.

Test for Legislative Competence

The Court confirmed the test from Christian Institute v Lord Advocate:

if a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with article 8 rights in all or almost all cases, the legislation itself will not be incompatible with Convention rights

Proportionality Assessment by Legislation

The Court clarified that Ziegler did not establish a universal rule requiring individual proportionality assessments in every case. Lord Reed stated:

If the offence is so defined as to ensure that any conviction will meet the requirements of proportionality, the court does not have to go through the process of verifying that a conviction would be proportionate on the facts of every individual case.

Legitimate Aims and Proportionality

The restrictions pursued legitimate aims: protecting women’s privacy and dignity when accessing lawful healthcare, protecting staff, preventing disorder, and implementing CEDAW recommendations. The Court found the Bill imposed only location-based restrictions on protest, not content-based restrictions, and protesters remained free to express views elsewhere.

Citing the European Court in Animal Defenders International, Lord Reed noted:

a state can, consistently with the Convention, adopt general measures which apply to pre-defined situations regardless of the individual facts of each case even if this might result in individual hard cases

Fair Balance

The Court emphasised that women accessing abortion services were a captive audience who could not avoid protesters. The Bill’s restrictions were geographically limited and served compelling justifications. Lord Reed concluded:

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.

Implications

This judgment provides important clarification on the relationship between criminal offences and Convention rights. It confirms that proportionality can be inherent in statutory ingredients without requiring case-by-case assessment or a defence of reasonable excuse. The decision supports the validity of buffer zone legislation around abortion clinics and reinforces that location-based restrictions on protest attract a wider margin of appreciation than content-based restrictions. The judgment also clarifies the test for assessing whether devolved legislation exceeds competence on human rights grounds.

Verdict: The Supreme Court unanimously held that clause 5(2)(a) of the Abortion Services (Safe Access Zones) (Northern Ireland) Bill was not incompatible with Convention rights under articles 9, 10 and 11, and was therefore within the legislative competence of the Northern Ireland Assembly. The question referred was answered in the negative.

Source: Abortion Services (Safe Access Zones), REFERENCE by the Attorney General for Northern Ireland [2022] UKSC 32