UKSC rules that buffer zones around abortion clinics do not violate protesters’ human rights

The UK Supreme Court has confirmed that the Northern Ireland Assembly can competently legislate to create buffer zones around abortion clinics. The judgment, delivered on 7 December 2022, considered the issue of the competing human rights of clinic users and anti-abortion protestors.

The Legislation

The Abortion Services (Safe Access Zones) (Northern Ireland) Bill was passed by the Northern Ireland Assembly in March 2022 to protect the right of women to access abortion and associated health services by prohibiting anti-abortion protests within “safe access zones” around abortion clinics. Clause 5(2)(a) of the Bill implements the criminal offence of committing “an act in a safe access zone with the intent of, or reckless as to whether it has the effect of… influencing a protected person, whether directly or indirectly”.

Section 6(2)(c) of the Northern Ireland Act 1998 states that a provision of a Bill is outwith the competence of the Northern Ireland Assembly if it is incompatible with the rights protected by the European Convention on Human Rights, including the rights to freedom of thought, conscience and religion, freedom of expression and freedom of assembly and association protected by Articles 9, 10 and 11 of the Convention.

The Supreme Court was asked by the Attorney General for Northern Ireland to determine whether the Abortion Services (Safe Access Zones) (Northern Ireland) Bill is outside the Northern Ireland Assembly’s legislative competence as a result of its interference with the Convention rights of those who seek to express their opposition to the provision of abortion treatment services in Northern Ireland. The Attorney General expressed concern that the bill did not introduce a defence of ‘reasonable excuse’ to charges of engaging in the prohibited conduct.

Decision

The Court unanimously held that that clause 5(2)(a) is compatible with the Convention rights of anti-abortion protestors.

Employing the relevant test to determine whether the restriction of convention rights is permissible, the Court held that Clause 5(2)(a) pursued the legitimate aim of ensuring that women are able to access abortion services under conditions which respect their privacy and dignity. The Court further held that this aim fell within the qualification to Articles 9, 10 and 11 of the Convention which permits the restriction of rights in order to prevent disorder, protect health and protect the rights and freedoms of others.

Continuing on, the Court held that Clause 5(2)(a) constituted a proportionate interference with the rights of anti-abortion protestors considering the importance of its aim. The Court additionally considered that the inclusion of a reasonable excuse would impact the effectiveness of the clause.

In reaching these conclusions, the Court acknowledged the sensitivity of the issues being considered, particularly in light of the protection of the autonomy of women. The Court confirmed that in situations where issues of great sensitivity are involved, states party to the ECHR should be afforded a wide margin of appreciation when balancing competing Convention rights.

The Court also noted that the Bill only prevents anti-abortion protestors from exercising their rights under articles 9, 10 and 11 of the Convention within designated safe access zones. These persons are free to protest anywhere else they choose to do so.

Relevance for Scotland

Similar legislation has been proposed for Scotland in the form of the Abortion Services Safe Access Zones (Scotland) Bill , which is a private members bill.  A working group, composed of representatives from various public bodies, including local authorities and Police Scotland, has been exploring how the bill could be implemented. Scottish Ministers had been observing the progress of the referral by the Attorney General for Northern Ireland to determine the vulnerability of the Abortion Services Safe Access Zones (Scotland) Bill to a challenge on the basis of legislative competence and are now expected to support the bill.

The Abortion Services Safe Access Zones (Scotland) Bill proposes to introduce a safe access zone measuring 150 metres from a site or any access point to a site that provides abortion services. Although some local authorities had been exploring implementing buffer zones sooner by using byelaws to introduce safe zones, the Convention of Scottish Local Authorities (COSLA) published legal advice on this issue, which concluded that byelaws would not be an appropriate vehicle to introduce the policy.  Contrary to the current local approach being taken in England, the Abortion Services Safe Access Zones (Scotland) Bill places responsibility for establishing safe access zones with the Scottish Government, as opposed to with local authorities or health boards. However, it is proposed that local authorities are granted the ability to vary the area of the zones depending on individual site circumstances.

There appears to be an upward trend in the devolved nations introducing new legislation that seeks to enshrine human rights protections.  It is, therefore, possible that the UK Supreme Court will see an increase in competency referrals, such as the reference made by the Attorney General for Northern Ireland.

Our experienced public law team is available for advice on constitutional law and issues affecting civil liberties and human rights, including l those surrounding the engagement of human rights by public bodies.