In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill

The Supreme Court was asked under section 11(1) of the Northern Ireland Act 1998 whether clause 5(2)(a) of the Abortion Services (Safe Access Zones) (Northern Ireland) Bill, which creates an offence of doing an act in a safe access zone with intent or recklessness as to whether it has the effect of influencing a protected person, is outside the legislative competence of the Northern Ireland Assembly because it is a disproportionate interference with Convention rights (articles 9, 10 and 11) given effect by the Human Rights Act 1998.

The court analysed the appropriate test for an ex ante challenge to legislation and reaffirmed the approach in Christian Institute v Lord Advocate: an ab ante challenge succeeds only if the provision is incapable of being applied compatibly with Convention rights in all or almost all cases. The court considered the roles of Ziegler and Cuciurean and held (i) that a proportionality assessment is not always required on the facts of each individual case, (ii) that the ingredients of an offence can themselves ensure proportionality, and (iii) that proportionality is not a pure question of fact but a legal assessment capable of being determined by courts or by the legislature within its margin of appreciation.

Applying those principles, the court concluded that clause 5(2)(a) pursues legitimate aims (protecting access to health care, privacy and dignity, and public health), is rationally connected to those aims, is proportionate when balanced against the rights of protesters taking into account the captive nature of clinic users and the evidence of harassment, and therefore is within the Assembly’s legislative competence.

This was a reference by the Attorney General for Northern Ireland under section 11(1) of the Northern Ireland Act 1998 challenging clause 5(2)(a) of the Abortion Services (Safe Access Zones) (Northern Ireland) Bill as outside the Assembly’s competence because, it was submitted, the clause creates a criminal offence without a defence of reasonable or lawful excuse and therefore would inevitably and disproportionately interfere with Convention rights (articles 9, 10 and 11) of anti-abortion protesters.

Background and parties: The Bill sought to establish safe access zones around premises where abortion services, advice or counselling are provided, making specified behaviour within those zones an offence. The Attorney General referred the question. The Lord Advocate, the Northern Ireland Human Rights Commission and JUSTICE intervened, and a number of domestic and comparative evidential sources were deployed (including the CEDAW report, Royal College submissions and academic studies) documenting harassment outside clinics.

Nature of the reference and relief sought: The central question submitted to the Court was whether the penal sanction created by clause 5(2)(a) without a provision for reasonable excuse was beyond the Assembly’s competence as a disproportionate interference with Convention rights. The Attorney invited a positive answer; interveners invited a negative answer on various grounds.

Issues framed:

• whether the appropriate ex ante test for incompatibility is the Christian Institute test (incompatible in all or almost all cases) or a less demanding test;
• whether a proportionality assessment must always be fact-specific and carried out in each individual criminal trial;
• whether the ingredients of an offence must include absence of lawful or reasonable excuse to permit a proportionality assessment and whether the ingredients can themselves satisfy proportionality;
• whether clause 5(2)(a) is a proportionate restriction on Convention rights.

Court’s reasoning: The court reaffirmed the Christian Institute approach for ab ante challenges and explained that In re McLaughlin did not displace that test. On Ziegler and Cuciurean the court held that (i) proportionality assessments are not always required to be fact-specific, (ii) the ingredients of an offence can in some cases inherently strike the proportionality balance, and (iii) proportionality is a legal assessment rather than a pure issue of fact and can be determined by courts or reflected in legislation, subject to the margin of appreciation. The court examined the Bill’s scheme: the definition and automatic establishment of safe access zones, the nature of protected persons, the scope and maximum penalties, and the evidential material about the intrusive, repeated and captive nature of protests at clinic entrances. Applying the proportionality sub-questions the court found the legislative aims important, the means rationally connected to those aims, the measure no more restrictive than necessary given the evidence and the practicalities of enforcement, and that a fair balance was struck between protesters’ rights and the privacy and health interests of clinic users and staff.

Decision: The question was answered in the negative: clause 5(2)(a) is not outside the Assembly’s legislative competence. The court therefore upheld the validity of the provision as compatible with Convention rights when properly understood.

The reference is answered in the negative. The Supreme Court held that clause 5(2)(a) is within the legislative competence of the Northern Ireland Assembly because it pursues legitimate aims, is rationally connected to those aims, and is a proportionate restriction on Convention rights in the relevant context; the court rejected the submission that a defence of lawful or reasonable excuse was always required or that proportionality must be assessed on the facts of every individual case.

Reference under section 11(1) of the Northern Ireland Act 1998 by the Attorney General for Northern Ireland to the Supreme Court; interventions by the Lord Advocate, JUSTICE and the Northern Ireland Human Rights Commission. No prior appeal history relevant to this reference was stated.