The Attorney General for Northern Ireland referred the Abortion Services (Safe Access Zones) Bill to the Supreme Court, questioning whether criminalising acts intended to influence persons near abortion clinics without a reasonable excuse defence was a disproportionate interference with Convention rights. The Court unanimously held the provision was within the Assembly’s legislative competence.
Background
The Northern Ireland Assembly passed the Abortion Services (Safe Access Zones) (Northern Ireland) Bill on 24 March 2022. The Bill was designed to protect women accessing lawful abortion services from pressure by anti-abortion protesters. It provided for the designation of ‘safe access zones’ around premises offering abortion-related services, within which specified conduct was prohibited. Clause 5(2)(a) 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’ in connection with their attendance at protected premises.
The Attorney General for Northern Ireland referred the question of whether clause 5(2)(a) was outside the Assembly’s legislative competence under section 11(1) of the Northern Ireland Act 1998, by virtue of section 6(2)(c) of that Act, which provides that a provision is outside competence if incompatible with Convention rights. The Attorney argued the provision disproportionately interfered with articles 9, 10 and 11 of the ECHR (freedom of conscience, expression and assembly) because it created a criminal offence without any defence of reasonable excuse, thereby precluding proportionality assessment in individual cases.
The Bill was enacted against a detailed factual backdrop. The CEDAW Committee had found grave and systematic violations of women’s rights in Northern Ireland regarding abortion access, including that women were subjected to harassment by anti-abortion protesters. Recommendation B of the CEDAW report specifically called on the UK to protect women from such harassment. Despite legislative reform permitting abortions broadly aligned with the rest of the UK, the Department of Health had failed to commission adequate services, and no action had been taken to implement recommendation B regarding protester harassment.
Extensive evidence before the Assembly — from health trusts, the Police Service of Northern Ireland, the Royal College of Obstetricians and Gynaecologists, and academic research — established that protests outside clinics caused significant distress to patients and staff, deterred women from accessing treatment, and in some cases led to clinics relocating. Research demonstrated that even silent prayer vigils and ostensibly non-aggressive conduct caused substantial distress to women accessing services, because the mere presence of activists at clinic sites was inherently intrusive and stigmatising.
The Issue(s)
The central question referred was whether clause 5(2)(a), creating a criminal offence with no defence of reasonable excuse, was outside the legislative competence of the Assembly as a disproportionate interference with articles 9, 10 and 11 ECHR rights. This raised several preliminary questions:
- What is the correct test for determining whether a provision of devolved legislation is beyond competence on grounds of disproportionate interference with Convention rights?
- Must there always be a fact-specific proportionality assessment in individual criminal cases where articles 9-11 are engaged?
- Is a defence of reasonable or lawful excuse necessary for compatibility with Convention rights?
- Can the ingredients of an offence themselves ensure proportionality?
- Is proportionality a question of fact?
The Parties’ Arguments
The Attorney General
The Attorney argued that clause 5(2)(a) was disproportionate because it criminalised conduct — including silent vigils, prayer, and handing out leaflets — without any defence of reasonable excuse, thereby preventing proportionality assessment in individual cases. Reliance was placed on DPP v Ziegler for the proposition that proportionality must always be assessed on the facts of each case, and on DPP v Cuciurean for the proposition that a lawful excuse defence was necessary. It was argued that clauses 5(2)(b) and (c) alone would have sufficed, and that the safe access zones were excessively wide.
The Lord Advocate
The Lord Advocate, intervening in the public interest, submitted that a provision of devolved legislation can only be beyond competence on Convention grounds if it would always or almost always operate incompatibly, following Christian Institute v Lord Advocate. She argued this threshold was not met, relying on the duties of the Department of Health and the courts under the Human Rights Act 1998.
The Northern Ireland Human Rights Commission
The Commission submitted that any interference arising from clause 5(2)(a) was inherently proportionate, and that the ingredients of a criminal offence can themselves satisfy proportionality requirements without a reasonable excuse defence.
JUSTICE
JUSTICE submitted that sections 3 and 6 of the Human Rights Act enabled clause 5(2)(a) to be interpreted and applied compatibly with Convention rights, that a reasonable excuse defence was not necessary, and that Cuciurean was erroneous insofar as it required one.
The Court’s Reasoning
The test for legislative competence
Lord Reed, delivering the unanimous judgment, confirmed that the applicable test was that stated in Christian Institute v Lord Advocate: legislation is not incompatible with Convention rights if it is capable of being operated compatibly — that is, if it will not give rise to an unjustified interference in all or almost all cases. Lord Reed held that Lady Hale’s reformulation in In re McLaughlin — that it suffices if legislation will inevitably operate incompatibly ‘in a legally significant number of cases’ — did not accurately state the Christian Institute test and was not intended to depart from it:
With respect, that is not what was said in Christian Institute, para 88. The difference is between Lady Hale’s words, ‘in a legally significant number of cases’, and the earlier words, ‘in all or almost all cases’. There is no indication in In re McLaughlin that Lady Hale intended to depart from the test stated in Christian Institute, para 88, but her dictum in the last sentence of para 43 did not state the test accurately.
Proportionality need not always be fact-specific
The Court rejected the submission that proportionality must always be assessed on the facts of the individual case. Lord Hamblen and Lord Stephens’ dictum in Ziegler that proportionality is ‘a fact-specific enquiry which requires the evaluation of the circumstances in the individual case’ was confined to the context of section 137 of the Highways Act 1980 and could not be treated as a universal rule. Citing the Grand Chamber in Animal Defenders International v United Kingdom, the Court confirmed:
[A] state can, consistently with the Convention, adopt general measures which apply to pre-defined situations regardless of the individual facts of each case even if this might result in individual hard cases.
No requirement for a reasonable excuse defence
The Court held that a defence of reasonable or lawful excuse is not necessary for compatibility with Convention rights. Where the ingredients of an offence themselves strike the proportionality balance, no separate case-by-case assessment is required. The Court endorsed the reasoning in Cuciurean that Ziegler did not establish a general principle requiring proportionality to be made an ingredient of every offence engaging articles 10 or 11:
For these reasons, it is impossible to read the judgments in Ziegler as deciding that there is a general principle in our criminal law that where a person is being tried for an offence which does engage articles 10 and 11, the prosecution, in addition to satisfying the ingredients of the offence, must also prove that a conviction would be a proportionate interference with those rights.
Proportionality is not a question of fact
The Court emphatically rejected the characterisation of proportionality as a factual question, citing Lord Bingham in the Belmarsh case:
The European Court does not approach questions of proportionality as questions of pure fact: see, for example, Smith and Grady v United Kingdom (1999) 29 EHRR 493. Nor should domestic courts do so.
Proportionality of clause 5(2)(a)
Applying the conventional four-stage proportionality analysis, the Court found:
Sufficiently important aim: The protection of article 8 rights of patients and staff — enabling access to lawful abortion services in privacy and dignity — constituted a compelling justification.
Rational connection: The restrictions bore a rational connection to protecting privacy, dignity and public health. Clause 5(2)(a) was also practically necessary; without it, defendants charged under clause 5(2)(b) or (c) would simply claim they were trying to persuade rather than obstruct or cause distress.
Less restrictive means: Drawing on Animal Defenders, the Court accepted the Assembly’s judgment that a defence of reasonable excuse would give rise to a risk of abuse, uncertainty, litigation and arbitrariness. A general measure was more feasible than case-by-case examination.
Fair balance: The Court identified seven key considerations, including: the extreme vulnerability of women accessing abortion services; the captive audience problem whereby women could not avoid protesters; the fact that the Bill restricted only the location, not the content, of expression; the international obligation under CEDAW; the modest maximum penalty of a £500 fine; and the wide margin of appreciation in balancing competing Convention rights on sensitive ethical questions.
Lord Reed stated:
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 is of such obvious importance as to constitute a compelling justification for legislative intervention.
On the geographic scope of safe access zones, the Court held that 100 metres (extendable to 250 metres) was not unjustifiable, given that protesters remained free to protest anywhere else. The argument that protesters needed to be at clinic entrances to confront their targets was rejected as fundamentally incompatible with the Bill’s legitimate aim.
The Court drew extensively on comparative jurisprudence — including the Supreme Court of British Columbia in R v Lewis, the British Columbia Court of Appeal in R v Spratt, the High Court of Australia in Clubb v Edwards, the English Court of Appeal in Dulgheriu v Ealing London Borough Council, and the European Commission of Human Rights in Van den Dungen v The Netherlands — all supporting the proportionality of safe access zone legislation.
Practical Significance
This decision is of major importance on several fronts. First, it clarifies the test for assessing devolved legislation’s compatibility with Convention rights, confirming the Christian Institute ‘all or almost all cases’ threshold and correcting Lady Hale’s reformulation in In re McLaughlin. Second, it provides authoritative guidance on the relationship between criminal offences and Convention proportionality, establishing that: (i) proportionality need not always be assessed on a case-by-case basis; (ii) the ingredients of an offence can themselves ensure proportionality; (iii) a defence of reasonable excuse is not a prerequisite for Convention compliance; and (iv) proportionality is not a question of fact. Third, it significantly limits the reach of Ziegler, confining its reasoning to the specific context of section 137 of the Highways Act 1980. Fourth, the decision provides a strong endorsement of safe access zone legislation, with implications for similar legislation contemplated in Scotland and elsewhere. Lord Reed’s concluding remarks are notable:
A legal system which enabled those who had lost the political debate to undermine the legislation permitting abortion, by relying on freedom of conscience, freedom of expression and freedom of assembly, would in practice align the law with the values of the opponents of reform and deprive women of the protection of rights which have been legislatively enacted.
Verdict: The Supreme Court unanimously answered the referred question in the negative: clause 5(2)(a) of the Abortion Services (Safe Access Zones) (Northern Ireland) Bill is not incompatible with the Convention rights of those who seek to express opposition to the provision of abortion services in Northern Ireland, and is therefore not outside the legislative competence of the Northern Ireland Assembly.
