Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022]: The proportionality of safe access zone legislation

Introduction

On 6 February 2023, the Abortion Services (Safe Access Zones) (Northern Ireland) Bill received Royal Assent. The Abortion Services (Safe Access Zones) Act (Northern Ireland) 2023 enables a safe access zone to be established for premises where abortion services are provided. ¹ The operator of the premises merely needs to notify the Northern Ireland Department of Health that he or she wants the premises to be protected, and the safe access zone will remain in place until such notice is withdrawn. ² The safe access zone is fixed and extends 100 m from each entrance to or exit from the protected premises as standard, ³ but this can be extended up to 250 m where the operator thinks that 100 m would not be adequate to afford safe access to the protected premises. ⁴ Section 5(2) of the Act makes it a criminal offence to do an act within the safe access zone with the intention of or being reckless as to the possibility of (a) directly or indirectly influencing a protected person, (b) preventing or impeding a protected person from accessing the protected premises, or (c) causing harassment, alarm, or distress to a protected person. Section 3 of the Act defines ‘protected persons’ as premises-users (including people seeking abortion), anyone accompanying premises-users to the premises, premises staff, and anyone providing services to the protected premises.

Before the Secretary of State was able to submit the Bill for Royal Assent, it was referred to the Supreme Court of the United Kingdom (UKSC) by the Attorney General for Northern Ireland ( ‘the Attorney General’) using powers afforded to her by section 11 of the Northern Ireland Act 1998. She asked the UKSC to consider whether clause 5(2)(a) is ‘a proportionate interference with the rights of those who wish to express opposition to abortion services in Northern Ireland’, afforded to them by the European Convention on Human Rights (ECHR). Clause 5(2)(a) would make it an offence to do an act within a safe access zone with the intention of or being reckless as to the possibility of directly or indirectly influencing a protected person. Were the offence disproportionate ‘in all or almost all cases’, ⁵ the provision would be incompatible with the ECHR and fall outside the legislative competence of the Northern Ireland Assembly (by virtue of section 6(2)(c) of the Northern Ireland Act 1998).

The UKSC handed down a unanimous judgement given by Lord Reed on 7 December 2022. It held that clause 5(2)(a) is a proportionate interference with the rights of those who wish to express opposition to abortion services in Northern Ireland. ⁶ The provision is therefore compatible with the ECHR and within the legislative competence of the Northern Ireland Assembly. ⁷ In this comment, I analyse the reasoning of the UKSC. I will consider, first, the clarifications offered by the UKSC on issues related to the proportionality assessment itself. Then I will turn my attention to the application of the proportionality test by the UKSC to the facts of this reference. I conclude that the reasoning of the UKSC in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill is sound.

Clarifications on issues related to the proportionality assessment itself

The Attorney General argued that clause 5(2)(a) was disproportionate because the 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’ is not qualified by a reasonable excuse defence. ⁸ In the absence of such a defence, the offence would not allow proportionality to be assessed in individual cases. ⁹ However, the UKSC clarified that ‘in a case where the exercise of rights under articles 9 to 11 of the Convention is raised by the defendant to a criminal prosecution’ there need not ‘always be an assessment of proportionality of any interference with those rights on the facts of the individual case’. ¹⁰ The UKSC further clarified that the proportionality assessment is not a fact-finding exercise, ¹¹ so it does not need to be undertaken by ‘the body responsible for finding the facts’ at trial. ¹² As such, the UKSC clarified that DPP v Ziegler (a previous decision of the UKSC) is not to be understood as stating a general rule that ‘every criminal conviction of protestors involved a restriction upon their Convention rights and must be proved to be justified and proportionate on the basis of an assessment of the particular facts’. ¹³ The UKSC agreed with the Northern Ireland Human Rights Commission (intervening) that ‘the ingredients of an offence’ can ‘in themselves . . . ensure the compatibility of a conviction with Convention rights’, ¹⁴ thus maintaining the correctness of the High Court’s decision in DPP v Cuciurean. ¹⁵ Crucially, the UKSC stressed that the ingredients of the offence could ensure compatibility, even in the absence of a reasonable excuse defence. ¹⁶ According to the UKSC, determining proportionality ‘involves the application, in a factual context (often not in a material dispute), of [a] series of legal tests . . . together with a sophisticated body of case law, and may also involve the application of statutory provisions, or the development of common law’. ¹⁷ The UKSC went on to undertake this assessment in relation to the offence in clause 5(2)(a). Prior to embarking on its proportionality assessment, the UKSC found that (1) clause 5(2)(a) restricts the exercise of anti-abortion protestors’ rights under articles 9 (freedom of thought, conscience and religion), 10 (freedom of expression), and 11 (freedom of assembly) ECHR; ¹⁸ (2) the restriction is prescribed by law; ¹⁹ and (3) the restriction pursues legitimate aims (the prevention of disorder/protection of public order, the protection of health, and the protection of the rights and freedoms of others). ²⁰

The application of the proportionality test to the facts of the reference

The UKSC applied its standard four-part test of proportionality. ²¹ The first two elements are relatively uncontroversial. First, the UKSC considered whether the aims (‘enabling women to access premises at which abortion services are lawfully provided in an atmosphere of privacy and dignity, without intimidation, shaming, disorder, or intrusions upon their privacy’ and ‘enabling the staff of such facilities to access their place of work under acceptable conditions’) were ‘sufficiently important to justify interference with a fundamental right’. ²² It was noted that these aims were ‘of such obvious importance as to constitute a compelling justification for legislative intervention’. ²³ Second, the UKSC considered whether there was ‘a rational connection between the means chosen and the aim in view’. ²⁴ The UKSC gave two reasons in support the existence of such a connection. ²⁵ For one, the measure was a response to the concern that pregnant persons seeking an abortion might be driven to unsafe illegal abortion if their access to safe legal abortion was ‘impeded’ by anti-abortion protestors. ²⁶ This does not assume that pregnant persons seeking abortion will be physically prevented from entering a clinic; rather, it recognises that pregnant persons seeking an abortion might be shamed, embarrassed, or frightened by anti-abortion protest(or)s. For another, similar measures have been adopted in other jurisdictions, ²⁷ such as Australia and Canada (and more recently, New Zealand). ²⁸

The third element of the UKSC’s proportionality assessment asked whether ‘less restrictive alternative means [were] available to achieve that aim’. ²⁹ The Attorney General argued that the behaviour prohibited within the safe access zone should have been limited to preventing or impeding access and causing harassment, alarm, or distress. ³⁰ In other words, clauses 5(2)(b) and 5(2)(c) of the Bill would have been sufficient to achieve its aims, without making it an offence to ‘influence a protected person, whether directly or indirectly’ in clause 5(2)(a). ³¹ The UKSC rejected the Attorney General’s argument, reasoning that ‘[i]nfluencing the behaviour of patients, visitors and staff, or attempting to do so, is one way of stopping women from accessing the health care services in question’. ³² Clearly, the UKSC is concerned by the possibility that pregnant persons may be prevented from accessing abortion services. Influencing a pregnant person might have a detrimental impact on her ability and/or willingness to access abortion services, even though she wants to terminate the pregnancy, because she feels shame, embarrassment, guilt, or fear. Where a pregnant person has been dissuaded from having an abortion by anti-abortion protestors, it is difficult to be certain that she has genuinely and freely changed her mind because an encounter with protestors is a powerful external influence on her decision. Furthermore, premises staff who are influenced by anti-abortion protestors may leave their jobs, and this may limit the availability of abortion services. ³³ Friends and/or family members who are influenced by anti-abortion protestors may no longer provide support to the pregnant person, who may be reluctant to access abortion services without such support. In this way, the UKSC also addresses the Attorney General’s concern raised during the hearing that clause 5(2)(a) applies to protected persons widely, not just the premises-user. ³⁴ The UKSC has focussed here on the possible effects of acts on protected persons (in particular, premises-users) rather than any particular act(s). ³⁵ ‘Act’ in clause 5 of the Bill is undefined, so it could include any action taken by anti-abortion protestors. The UKSC’s approach can be justified because it would be difficult to produce an exhaustive list of activities undertaken by anti-abortion protestors, given that they are so wide-ranging. ³⁶ Furthermore, Lowe and Hayes, cited by the UKSC elsewhere in its judgment, suggest that ‘[t]he harassment women feel . . . stems from the presence of activists at clinic sites, rather than from precise conduct’. ³⁷

Another of the UKSC’s reasons in support of its conclusion that no less restrictive means than clause 5(2)(a) were available to achieve the aim of the Bill was that limiting the behaviour prohibited within the safe access zone to preventing or impeding access and causing harassment, alarm, or distress (as the Attorney General advocated for) might have had a negative impact on the efficacy of the other offences set out in clause 5:

In the absence of clause 5(2)(a), the obvious defence to a charge under clause 5(2)(b) or (c) would be that the defendant had no intention of preventing or impeding access or causing harassment, alarm or distress, but was merely trying to persuade the complainant to change her mind. ³⁸

Without s 5(2)(a), it would be difficult for ‘the prosecution to prove the charge beyond reasonable doubt . . . in all but flagrant cases’. ³⁹ It might also be difficult for the police to enforce safe access zones. ⁴⁰ This is because it would have to be established, for each interaction, what an anti-abortion protestor was trying to achieve with his or her actions, ⁴¹ or what potential consequences of his or her actions an anti-abortion protestor was aware of.

A final argument advanced by the Attorney General on least restrictive means was that ‘the absence . . . of a defence of reasonable excuse renders it unduly restrictive’. ⁴² The UKSC rejected this argument:

. . . if such a defence were available, protestors would claim that they were excusably ignorant of the fact that the person whom they approached was a protected person, notwithstanding the breadth of that expression . . . or that they did not realise that they were within a safe access zone, notwithstanding the provisions . . . relating to the notification of the public. ⁴³

Of course, the reasonableness of these two excuses will depend on the various empirical facts in any particular case. ‘Protected persons’ is defined broadly, as the UKSC acknowledged, ⁴⁴ but not everyone within a safe access zone is necessarily a protected person. 100–250 m is a significant area, and if the protected premises is situated near to other buildings there may be non-protected persons passing through the safe access zone. What these other buildings are may affect the amount of and type of non-protected persons passing through. Operators of protected premises are required to take ‘reasonable steps’ to make the public aware that there is a safe access zone and, crucially, the size of the zone, as the UKSC acknowledged. ⁴⁵ Nevertheless, there may be questions regarding the adequacy of the measures taken to alert the public to the safe access zone – for example, was the positioning of, size of, and number of signs sufficient? All this is to say that it may be possible for an anti-abortion protestor to argue that he or she did not know that a particular individual was a protected person and/or that he or she did not know that he or she was in a safe access zone. Hence, the UKSC appealed to the decision of the European Court of Human Rights (ECtHR) in Animal Defenders International v UK to justify the absence of a reasonable excuse defence, by noting that having to determine every case on its facts could not be a ‘feasible’ way to achieve the aim of the Bill. ⁴⁶ As the ECtHR observed, this ‘would give rise to a risk of significant uncertainty, of litigation, expense and delay as well as of discrimination and arbitrariness’. ⁴⁷

The final element of the UKSC’s proportionality assessment examined whether clause 5(2)(a) struck ‘a fair balance between the rights of the individual and the general interest of the community, including the rights of others’. ⁴⁸ The UKSC concluded that it had. ⁴⁹ The UKSC observed that the state enjoys a wide margin of appreciation (discretion) to determine the appropriate balance, given that abortion ‘raises sensitive and controversial questions of ethical and social policy’. ⁵⁰ However, the ECtHR has previously stressed that ‘there is little scope under [Articles 10(2) and 11(2)] for restrictions on. . . questions of public interest’, ⁵¹ such as the abortion debate. ⁵² The margin of appreciation may have been narrowed in such circumstances, therefore. Nevertheless, we might doubt (indeed, the UKSC did doubt) ⁵³ whether anti-abortion protests outside clinics/hospitals meaningfully contribute to the abortion debate. ⁵⁴ This is because the goal of anti-abortion protestors who protest outside clinics/hospitals seems to be to affect the decisions of individual premises-users, rather than to oppose abortion law or policy. ⁵⁵ The Court of Appeal in Dulgheriu and another v Ealing London Borough Council (where a Public Space Protection Order (PSPO) that prevented all abortion-related protest within 100 m of an abortion clinic in Ealing was challenged) found that the protests were ‘a contribution to public debate . . . notwithstanding the fact that the individual service users . . . were the immediate target of those expressions of opinion’. ⁵⁶ However, the Court of Appeal may now have to revisit this conclusion in a future decision in light of the UKSC’s conflicting statement in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill. The UKSC also noted that the Bill was ‘intended to implement’ the recommendation of the United Nations Committee on the Elimination of Discrimination against Women that Northern Ireland should take steps to ‘protect women from harassment by anti-abortion protesters by investigating complaints and prosecuting and punishing perpetrators’. ⁵⁷

In balancing the competing considerations, the UKSC made a number of points which show that the interests of pregnant persons seeking access to abortion are of greater importance than the interests of the anti-abortion protestors. The UKSC first highlighted the vulnerability of premises-users, who may be ‘feeling ill’ or ‘in discomfort’ as well as being under ‘acute emotional and psychological strain’ (which may be ‘exacerbated’ due to particular ‘personal circumstances’). ⁵⁸ Furthermore, premises-users ‘will reasonably wish that their condition should be kept private, and that they should not be the focus of intrusive public attention’. ⁵⁹ The UKSC used this context to explain why ‘the protection of the private lives and autonomy of women’, afforded to them by Article 8 ECHR, ‘is of ‘particular importance’. ⁶⁰ The UKSC also emphasised the fact that those entering/leaving the clinic/hospital cannot avoid the anti-abortion protests. It was noted that premises-users cannot access clinics/hospitals ‘except by means of spaces to which the public have access’. ⁶¹ The UKSC further noted that premises-users and premises staff are a ‘captive audience’ who are ‘compelled to listen to . . . or witness’ the protests, ⁶² and that premises-users cannot schedule their appointments to avoid anti-abortion protests, due to the frequency of the anti-abortion protests. ⁶³

Factors specific to the position in Northern Ireland exacerbate both the vulnerability of premises-users and the impossibility of avoiding anti-abortion protests. The criminalisation of abortion in almost all cases until 22 October 2019 and the continued difficulty in accessing abortion in Northern Ireland, for example, may result in additional strain for premises-users and an even greater desire to avoid attention when entering/leaving the clinic/hospital. Furthermore, it will be more difficult for premises-users to attend an alternative clinic/hospital in Northern Ireland because the number of clinics/hospitals providing abortion services is especially limited. ⁶⁴ Another example might be the absence of provision for telemedical abortion (whereby a pregnant person can access abortion at home) in Northern Ireland because all pregnant persons seeking an abortion have to attend the clinic/hospital in-person. Nevertheless, the UKSC was wise to avoid appealing to the specific Northern Irish context in its reasoning because doing so may have diluted the force of pregnant person’s rights. It might also have a negative impact on the outcome of the proportionality assessment if safe access zone legislation were to be challenged in England and Wales, where such factors do not exist.

As part of its balancing assessment, the UKSC held that ‘the Bill does not prevent the exercise of any right protected by articles 9–11 of the Convention, but merely imposes a limitation upon the places where those rights may be exercised’, ⁶⁵ that is, within the safe access zone. ⁶⁶ The fact that the Bill does not provide for a designated protest area (unlike the PSPO discussed in Dulgheriu) does not seem to have been a relevant consideration for the UKSC. ⁶⁷ The UKSC’s point that anti-abortion protests are not completely prohibited primarily relates to the protection of the rights of protestors, but there is a question about how effective simply moving protestors down the road (as opposed to prohibiting the protests entirely) might be for achieving the aim of the Bill. If it transpires that this is not very effective, because pregnant persons are still prevented from accessing abortion by the protest(or)s, greater restrictions (such as a larger safe access zones) may be needed to give effect to the conclusion of the UKSC that the interests of pregnant persons are of greater importance than those of anti-abortion protestors. Indeed, the UKSC noted as part of its balancing assessment that:

[t]he Bill gives effect to the judgment of a democratic legislature that existing laws did not adequately protect women seeking to access reproductive health clinics from activities which . . . had the potential to deter them from availing themselves of those facilities. ⁶⁸

Closely connected to its point that the Bill merely limits where anti-abortion protestors can protest, the UKSC held that:

A zone of up to 250 metres does not represent an unjustifiable restriction of the rights of protestors, when they remain free to protest anywhere else they please, and when the rights of the patients and staff are taken into consideration. ⁶⁹

On the size of the safe access zone, the UKSC also observed that the 100-m zone, which can be extended to 250 m, ‘reflects the fact that the most appropriate size of the safe access zone may be affected by the location and circumstances of a particular clinic’. ⁷⁰ I have made a similar point elsewhere. ⁷¹ The appropriateness of the penalty for the offence (‘a fine of up to £500 . . . or up to £2,500 . . . if the offender resists removal by the police or refuses a direction to leave the safe access zone’) was also relevant to the UKSC’s balancing assessment. ⁷² It appears as though the UKSC are addressing the severity (or not) of the penalty here, that is, the level of the fine and, perhaps, that there is no provision in the Bill for imprisoning offenders. It may also be relevant that civil penalties (such as injunctions to prevent actual or anticipated protests and/or damages to compensate protected persons for loss suffered as a result of encountering protest(or)s) would not be sufficient to address the interference with the rights of pregnant persons, compared to the criminal law. Elsewhere, I have argued that placing the onus on an individual to sue anti-abortion protestors would be a significant burden to impose and that merely requiring anti-abortion protestors to compensate for loss rather than to accept punishment may prevent the law operating as a deterrent. ⁷³ The latter is hugely problematic for a law which is intended to prevent anti-abortion protests occurring outside protected premises.

When discussing the UKSC’s least restrictive means analysis earlier in this comment, I observed that the UKSC focussed on the possible effects of acts on protected persons rather than any particular act. As part of its balancing assessment, however, the UKSC did consider the non/violent nature of acts undertaken by anti-abortion protestors when it rejected the Attorney General’s argument that ‘there can be no justification for a prohibition of non-violent demonstrations’. ⁷⁴ The UKSC explained that non-violent activities are capable of deterring a pregnant person from accessing abortion, ⁷⁵ again stressing the possible effects of acts on protected persons. ⁷⁶ The UKSC also clarified that ‘disorder’ (as it appears in Lashmankin v Russia – the authority cited by the Attorney General to support her argument) was ‘not confined to the use of violence’. ⁷⁷

Ultimately, the fact that anti-abortion protestors choose to protest outside clinics/hospitals because they want to target pregnant people seeking access to abortion services and premises staff as they enter/leave their place of work did not convince the UKSC that anti-abortion protestors must be allowed to protest there. ⁷⁸

Conclusion

Overall, the reasoning of the UKSC in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill is sound. The reference is of particular significance because the UKSC had not previously considered the proportionality of safe access zone legislation. Furthermore, the reference is likely to inform plans to introduce safe access zone legislation in Scotland because the Scotland Act 1998 provides a similar, but not identical, framework of legislative competences to the Northern Ireland Act 1998. The reference may also be relevant to any future human rights based challenges to the English/Welsh Public Order Bill when it becomes law later this year. Clause 10 of this Bill will introduce safe access zones of 150 m around all abortion clinics in England and Wales automatically. ⁷⁹ Clause 10 of the Bill will also make it an offence to influence a person’s decision to access abortion, provide abortion, or facilitate the provision of abortion within the zone. ⁸⁰ The English/Welsh Bill is therefore very similar to the Northern Irish Bill examined in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill. However, some notable differences (e.g., the safe access zones are 150 m as standard with no scope for extension/reduction) may mean that the proportionality of the legislation merits individual examination.