Accessing Abortion Services without Harassment from Protesters
7 December 2022
The issue before the United Kingdom Supreme Court was the protection of the right of women to access services relating to the lawful termination of pregnancy. It addressed the problem where women wishing to access such services had been subjected to pressure by anti-abortion protesters not to do so which had prevented some women from accessing those services: Abortion Services (Safe Access Zones), REFERENCE by the Attorney General for Northern Ireland [2022] UKSC 32 Lord Reed, Lord Kitchin, Lord Burrows, Lady Rose, Lord Lloyd-Jones, Lord Carloway, Dame Siobhan Keegan
A Bill to that effect – the Abortion Services (Safe Access Zones) (Northern Ireland) Bill – which was passed by the Northern Ireland Assembly in March of this year was challenged by the Attorney General for Northern Ireland on the ground that it was outside the legislative competence of the devolved government.
The Attorney submitted that the provision was a disproportionate interference with the freedom of conscience, speech and assembly of anti-abortion protesters and demonstrators, protected rights under Arts 9, 10 and 11 of the European Convention of Human Rights and which were given effect by the Human Rights Act 1998.
The Lord Advocate, senior Law Officer of the Scottish Government intervened in the public interest against the backdrop that similar legislation may soon be introduced in the Scottish Parliament. Thus it was that the Supreme Court truly represented each part of the United Kingdom when it was reinforced by the addition of Lord Carloway, Lord President of the Court of Session, and Lady Siobhan Keegan, Chief Justice of Northern Ireland.
Clause 5(2)(a) of the Bill made it an offence to do an act in a safe access zone with the intent of, or reckless as to whether it had the effect of … influencing a protected person, whether directly or indirectly. The persons protected included patients, persons accompanying them and staff who worked at the premises where abortion services were provided. The Attorney General asked the Supreme Court to decide whether the penal sanction, with no provision for reasonable excuse, was outside the legislative competence of the Assembly because of the disproportionate interference with the rights referred to above.
The court unanimously held that the clause was compatible with the Convention rights of those who sought to express their opposition to the provision of abortion treatment services in Northern Ireland and therefore the clause was within the legislative competence of the Assembly.
The provision of devolved legislation, such as the clause referred to, would only be outside legislative competence because it was incompatible with Convention rights if it would give rise to an unjustified interference with those rights.
Having considered questions arising from the authorities, the court held that during a criminal trial it was not always necessary to assess whether a conviction for an offence would be a proportionate interference with a particular defendant’s rights under Arts 9, 10 and 11. The ingredients of the offence could in themselves ensure that a conviction would be compatible with the Convention rights. That may be the case even if the offence did not include a defence of lawful or reasonable excuse. The assessment of whether an interference with a Convention right was proportionate was not an exercise in fact-finding but rather involved the application of a series of legal tests in factual context. As a result, it did not necessarily need to be conducted by the body responsible for finding the facts at any trial.
The court recognised that clause 5(2)(a) restricted the exercise of protesters’ Convention rights but the restriction could be justified.
Firstly, the restriction was prescribed by law. Secondly, the clause pursued a legitimate aim of seeking to ensure that women had access to advice and treatment relating to the lawful termination of pregnancy under conditions which respected their privacy and dignity, thereby protecting public health. It was also designed to enable staff to work at abortion clinics and related premises without being intimidated, harassed or abused. These aims fell within the qualifications in Arts 9(2), 10(2) and 11(2) of the Convention which protected the rights and freedoms of others. Furthermore, the right to access health care in conditions of privacy and dignity and the right to pursue employment were protected by Art 8 of the Convention. Thirdly, the restrictions imposed were proportionate and the clause struck a balance between competing rights.
The court had regard to the highly sensitive context which was the protection of the private lives and autonomy of women which was of particular importance. Women wishing to access lawful abortion services had a reasonable expectation of being able to do so without being confronted by protest activity designed to challenge and diminish their autonomy and undermine their resolve. Although the protesters were prevented from protesting within the restricted zones, they were free to protest elsewhere, and the maximum fine for an offence under the clause was £500. Women and staff protected by the clause were a captive audience who were compelled to witness anti-abortion activity that was unwelcome and intrusive when they visited premises where abortion services were provided.
The Bill was intended to implement the UK’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women. In a sensitive context such as this, states had a wide margin of appreciation in situations where it was necessary to strike a balance between competing Convention rights.