REFERENCE by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill

A devolved legislative provision challenged before it takes effect is incompatible with Convention rights only if it is incapable of being applied compatibly and would produce unjustified interference in all or almost all cases.

Proportionality is a legal assessment. It need not always depend on individual facts or be determined by the fact-finder. A general legislative measure, including a criminal offence, may itself strike the required balance. A defence of lawful or reasonable excuse is therefore not invariably required.

A limited restriction on where protesters may exercise rights under articles 9 to 11 may proportionately protect access to health care, privacy and dignity. An offence prohibiting intentional or reckless influence within abortion safe-access zones achieved that balance and fell within devolved legislative competence.

The Northern Ireland Assembly passed the Abortion Services (Safe Access Zones) (Northern Ireland) Bill to protect patients, accompanying persons and staff from conduct outside premises providing abortion services. Clause 5(2)(a) made it an offence to act within a safe-access zone with the intention of, or recklessness as to, influencing a protected person in connection with attendance at protected premises.

The Attorney General for Northern Ireland referred the provision directly to the Supreme Court under section 11(1) of the Northern Ireland Act 1998. The Attorney argued that the absence of a reasonable-excuse defence made the offence a disproportionate interference with rights under articles 9, 10 and 11 of the European Convention on Human Rights.

The central question was whether clause 5(2)(a) was consequently outside the Assembly’s legislative competence under section 6(2)(c) of the Northern Ireland Act 1998.

1. The question referred was answered in the negative. Lord Reed delivered the judgment, with which all six other members of the court agreed. Clause 5(2)(a) was compatible with Convention rights and within the legislative competence of the Northern Ireland Assembly.

2. For a challenge to legislation before its application to particular facts, the test remained that stated in Christian Institute v Lord Advocate [2016] UKSC 51. Legislation survives if it is capable of compatible application and will not cause unjustified interference in all or almost all cases. The formulation in In re McLaughlin [2018] UKSC 48, referring to a legally significant number of cases, was an inaccurate dictum and did not replace that test.

3. Proportionality is not invariably a fact-specific inquiry requiring evaluation at every trial. It is a legal assessment conducted in a factual context. General legislation may itself strike the balance required by articles 9 to 11. Nor must every protest-related offence contain a defence of lawful or reasonable excuse. The contrary understanding of Director of Public Prosecutions v Ziegler [2021] UKSC 23 was mistaken; the reasoning in Director of Public Prosecutions v Cuciurean [2022] EWHC 736 (Admin) was approved.

4. When Convention rights are invoked against a protest-related offence, the court first considers whether those rights are engaged. Violent, abusive or anti-democratic conduct may fall outside their scope. If the offence’s ingredients themselves ensure proportionality, proof of those ingredients is sufficient. Otherwise, compatibility may have to be secured through section 3 or section 6 of the Human Rights Act 1998, or through development of the common law.

5. Clause 5 restricted conduct protected by articles 9 to 11, but the restriction was prescribed by law and pursued legitimate aims. Those aims included protecting health, public order, and the article 8 rights, privacy and dignity of patients and staff. Clause 5(2)(a) was rationally connected to those aims and was necessary to prevent the remaining prohibitions from being evaded through claims that the protester merely intended persuasion.

6. The measure struck a fair balance. It regulated only the location of expression, left extensive alternative opportunities for protest, protected a vulnerable captive audience, and imposed a modest maximum fine. The 100-metre zone, extendable to 250 metres where necessary for safe access, was justified. Once the ingredients of clause 5 were proved, no separate individual proportionality assessment was required.

• United Kingdom Supreme Court: On a direct reference under section 11(1) of the Northern Ireland Act 1998, the court unanimously held that clause 5(2)(a) of the Abortion Services (Safe Access Zones) (Northern Ireland) Bill was within the Assembly’s legislative competence.
• Northern Ireland Assembly: The Bill was passed after committee scrutiny and debate. The Assembly deliberately rejected a proposed reasonable-excuse defence before the reference was made.