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

On 24 March 2022 the Northern Ireland Assembly (“the Assembly”), the devolved legislature for Northern Ireland, passed the Abortion Services (Safe Access Zones) (Northern Ireland) Bill (“the Bill”). The Attorney General for Northern Ireland (“the Attorney”), who is the chief legal adviser to the Northern Ireland Executive Committee (“the Executive”), the devolved government of Northern Ireland, has referred to the Supreme Court the question whether a particular provision of the Bill would be outside the legislative competence of the Assembly, under section 11(1) of the Northern Ireland Act 1998 (“the Northern Ireland Act”). The reference is made in respect of clause 5(2)(a) of the Bill, which is set out below.

The Bill is intended primarily to protect the right of women to access services relating to the lawful termination of pregnancy. It addresses the problem that women wishing to access such services have been subjected to pressure by anti-abortion protesters not to do so, which has prevented some women from accessing those services. It aims to achieve its objectives by making provision for the designation of “safe access zones” adjacent to the premises where such services are provided, within which specified types of behaviour are prohibited. Clause 5(2)(a), in particular, would make it an offence “to do an act in a safe access zone with the intent of, or reckless as to whether it has the effect of – (a) influencing a protected person, whether directly or indirectly”.

The Attorney submits that this provision is a disproportionate interference with the freedom of conscience, speech and assembly of anti-abortion protesters and demonstrators: rights which are protected by articles 9, 10 and 11 of the European Convention on Human Rights (“the Convention”) and given effect in domestic law by the Human Rights Act 1998 (“the Human Rights Act”). Those articles provide, so far as relevant:

Counsel for the Attorney submit that since clause 5(2)(a) of the Bill creates an offence which is unqualified by any defence of lawful or reasonable excuse, it cannot be read or applied in a way which would permit an assessment of the proportionality of any restriction of protesters’ rights under articles 9, 10 and 11 in individual cases. On that basis, counsel submit that clause 5(2)(a) results in a disproportionate interference with the rights protected by those articles, and is therefore outside the legislative competence of the Assembly. In that regard, they refer to section 6(2)(c) of the Northern Ireland Act, which provides that a provision is outside that competence if it is incompatible with any of the Convention rights. In making that submission, counsel rely on the decision of this court in Director of Public Prosecutions v Ziegler [2021] UKSC 23; [2022] AC 408 (“Ziegler”), and in particular on dicta which they interpret as meaning that an assessment of proportionality must always be based on the facts of an individual case. They also rely on the decision of the Divisional Court in Director of Public Prosecutions v Cuciurean [2022] EWHC 736 (Admin); [2022] 3 WLR 446 (“Cuciurean”), which they interpret as meaning that there cannot be an assessment of proportionality in criminal proceedings unless the ingredients of the offence include the absence of a lawful or reasonable excuse.

Accordingly, the question referred by the Attorney is:

The Lord Advocate, the senior Law Officer of the Scottish Government, has intervened in the proceedings in the public interest, and against the background that similar legislation may be introduced in the Scottish Parliament in the foreseeable future. She submits that a provision of devolved legislation can only be said to be beyond legislative competence on the ground that it is a disproportionate interference with a Convention right if it would always, or almost always, have that effect. She submits that that test is not satisfied in respect of clause 5(2)(a), for two reasons. First, the designation of a safe access zone under the Bill has to be made by the Northern Ireland Department of Health (“the Department of Health”), which is a part of the devolved administration; and, in terms of section 24 of the Northern Ireland Act, the Department of Health cannot do any act so far as the act is incompatible with any of the Convention rights. She also makes a similar submission in respect of the power of the operator of premises under the Bill to notify the Department of Health that it wishes the premises to be protected premises, or wishes the safe access zone to be extended, provided in either case that the operator of the premises is a public authority, since section 6(1) of the Human Rights Act makes it unlawful for a public authority to act in a way which is incompatible with the Convention rights. Secondly, and in any event, she submits that a court would be bound not to convict of an offence under clause 5(2)(a) if to do so would be contrary to its duty under section 6(1) of the Human Rights Act. A court is a public authority for this purpose: section 6(3)(a). The Lord Advocate accordingly invites the court to answer the question referred in the negative.

The Northern Ireland Human Rights Commission (“the Human Rights Commission”) has also intervened in the proceedings. It submits that clause 5(2)(a) is within the legislative competence of the Assembly because it would not lead to a breach of Convention rights in all or nearly all cases. Further, it submits that any interference with Convention rights arising from the provision is inherently proportionate. In submitting that the ingredients of a criminal offence can in themselves satisfy the requirements of proportionality, even in the absence of any provision for a reasonable or lawful excuse, the Human Rights Commission relies on the judgment in Cuciurean. It accordingly invites the court to answer the question referred in the negative, partly for different reasons from those advanced by the Lord Advocate.

JUSTICE, a human rights charity, has also intervened. It submits that whether an offence makes provision for a defence of lawful or reasonable excuse is not critical to its compatibility with Convention rights. The duty of a criminal court to consider the proportionality of a conviction where Convention rights are engaged arises from section 6(1) of the Human Rights Act. In addition, section 3 of that Act requires that legislation should be read and given effect, so far as it is possible to do so, in a way which is compatible with Convention rights. Furthermore, section 83(2) of the Northern Ireland Act requires that a provision of a Bill or Act of the Assembly shall be read and have effect in a way which makes it within the competence of the Assembly, where it can be so read. JUSTICE submits that these provisions enable clause 5(2)(a) to be interpreted and applied compatibly with the Convention, even in the absence of any reference to a reasonable excuse.

On this basis, JUSTICE submits that the reasoning in Cuciurean is erroneous in so far as it suggests that a reference to lawful or reasonable excuse is necessary for a proportionality assessment to be made. Rather, it is submitted that in accordance with the reasoning in Ziegler there must always be an assessment of proportionality, as a question of fact, which must necessarily be carried out by the body responsible for determining the facts at the trial of the offence in each individual case. In holding that the ingredients of an offence can in themselves ensure the proportionality of a conviction, the decision in Cuciurean is submitted to be erroneous and inconsistent with the jurisprudence of the European Court of Human Rights (“the European court”). JUSTICE accordingly invites the court to answer the question referred in the negative, for different reasons from those advanced either by the Lord Advocate or by the Human Rights Commission.

The submissions accordingly raise a question as to the appropriate test to apply when deciding whether a provision of devolved legislation is beyond legislative competence on the ground that it is a disproportionate interference with a Convention right. They also raise a number of questions in relation to the decisions in Ziegler and Cuciurean. The first is whether, in a case where the exercise of rights under articles 9 to 11 of the Convention is in question, there must always be an assessment of the proportionality of any interference with those rights on the facts of the individual case. The second is whether, where an offence is liable to give rise to an interference with the exercise of rights under articles 9, 10 or 11 of the Convention, it is necessary for the ingredients of the offence to include the absence of reasonable or lawful excuse in order for a conviction to be compatible with the Convention rights. The third is whether it is possible for the ingredients of an offence in themselves to ensure the compatibility of a conviction with articles 9, 10 and 11. The fourth is whether an assessment of proportionality is a question of fact. The fifth is whether any assessment of proportionality in criminal proceedings must necessarily be carried out by the body responsible for determining the facts at the trial of the offence. As will be apparent, there is a considerable degree of overlap between these questions.

I shall begin by addressing those preliminary questions, in order to clarify the legal context in which the question referred has to be answered, before turning to consider the Bill, and the question referred, in greater detail.

I can now turn to the background to the reference in the present case. I shall proceed by considering, first, the background to the Bill, then the consideration of the Bill by the Assembly, and finally the provisions of the Bill as passed.

Until recently, women were prohibited from having abortions in Northern Ireland unless there was a risk to the mother’s life or of serious long-term or permanent injury to her physical or mental health. The situation was very different from that in the rest of the United Kingdom, where, since the enactment of the Abortion Act 1967, abortions can be lawfully performed up to the end of the twenty-fourth week of pregnancy. Attempts during 2016 to have the Assembly legalise abortions to a very limited extent - in cases of fatal foetal abnormality or pregnancy resulting from sexual crimes - were unsuccessful.

In February 2018 the United Nations Committee on the Elimination of Discrimination against Women (“the CEDAW Committee”), which monitors implementation of the Convention on the Elimination of All Forms of Discrimination against Women (1979) (“CEDAW”), published a highly critical report on the situation in Northern Ireland: Report of the inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/OP.8/GBR/1, (“the CEDAW report”). The CEDAW Committee found that the United Kingdom was responsible for grave and systematic violations of the rights of women in Northern Ireland under CEDAW. It will be necessary to consider specific aspects of this report at a later stage. For present purposes, it is sufficient to note two of the recommendations which were made to the United Kingdom, focusing on Northern Ireland. Recommendation A at para 85 recommended inter alia that the United Kingdom should (a) repeal the law then in force in Northern Ireland and (b) adopt legislation to provide for expanded grounds to legalise abortion. Recommendation B at para 86 recommended inter alia that the United Kingdom should “(g) Protect women from harassment by anti-abortion protestors by investigating complaints and prosecuting and punishing perpetrators”.

Parliament subsequently enacted the Northern Ireland (Executive Formation etc) Act 2019 (“the 2019 Act”), which imposed an obligation on the Secretary of State (a member of the United Kingdom Government as distinct from the devolved institutions in Northern Ireland) to ensure that the recommendations in paras 85 and 86 of the CEDAW report were implemented in respect of Northern Ireland: section 9(1). The Act also provided that the Secretary of State must by regulations make whatever changes to the law appeared to be necessary or appropriate for that purpose: section 9(4). The Act also repealed the existing legislation governing abortions in Northern Ireland, and required the Secretary of State to make regulations for the purpose of regulating abortions there: section 9(2) and (5).

In 2020, the Abortion (Northern Ireland) Regulations 2020 (SI 2020/345) were made under section 9 of the 2019 Act and approved by the United Kingdom Parliament. They came into force on 31 March 2020. They were subsequently revoked and replaced by the virtually identical Abortion (Northern Ireland) (No 2) Regulations (SI 2020/503) (“the 2020 Regulations”), also made under section 9 of the 2019 Act. They came into force on 14 May 2020. Their effect was broadly to align the law on terminations of pregnancy in Northern Ireland with the law in the rest of the United Kingdom.

Notwithstanding the enactment of the 2019 Act and the making of the 2020 Regulations, the Department of Health failed to commission, support or fund the provision of abortion services in Northern Ireland. This prompted the bringing of judicial review proceedings by the Human Rights Commission against the Secretary of State, the Executive (comprising the First Minister, the deputy First Minister and the Northern Ireland Ministers) and the Minister of Health (a member of the Executive) in respect of the continuing failure to provide women in Northern Ireland with access to abortions in public health facilities: Re Northern Ireland Human Rights Commission [2021] NIQB 91. In his judgment, Colton J found that the Executive had made it clear that it would not agree to any commissioning proposals. He described the situation as one where “those in public office are not prepared to comply with their legal obligations because they disagree with the relevant law” (para 104).

The Secretary of State responded to the situation by making the Abortion (Northern Ireland) Regulations 2021 (SI 2021/365) (“the 2021 Regulations”), which came into force on 31 March 2021. Regulation 2(1) enables the Secretary of State, if he considers that any action capable of being taken by a “relevant person” is required for the purpose of implementing the recommendations in paras 85 and 86 of the CEDAW report, to direct that the action must be taken. The expression “relevant person” is defined as including the First Minister, the deputy First Minister, a Northern Ireland Minister and a Northern Ireland department. The Secretary of State then issued the Abortion Services Directions 2021 (“the 2021 Directions”) pursuant to the 2021 Regulations. The 2021 Directions required the Department of Health to secure the commissioning and provision of abortion services by 31 March 2022.

The lawfulness of the 2021 Regulations and the 2021 Directions was questioned by the Attorney in advice to Northern Ireland Ministers, and was challenged in judicial review proceedings brought by an anti-abortion organisation. It was argued in those proceedings that both the Regulations and the Directions were ultra vires. The challenges were rejected: Re SPUC Pro-Life Ltd’s Application for Judicial Review [2022] NIQB 9.

The Secretary of State then made the Abortion (Northern Ireland) Regulations 2022 (SI 2022/554) under section 9 of the 2019 Act (“the 2022 Regulations”). They conferred on the Secretary of State the power to do anything that a Northern Ireland Minister or department could do for the purpose of ensuring that the recommendations in paras 85 and 86 of the CEDAW report are implemented (regulation 4(1)).

On 20 May 2022, the Secretary of State issued the Abortion Services Directions 2022, which replaced and revoked the 2021 Directions. They are in substantially similar terms, but replace the previous deadline of 31 March 2022 with “as soon as reasonably practicable”.

On 16 June 2022, the Secretary of State informed Parliament that he had established an expert team in the Northern Ireland Office to work on the commissioning of abortion services, so that he could use the power provided by the 2022 Regulations to commission abortion services himself. He said that, as soon as his team had developed the commissioning, and if the Department of Health had not already acted, “we will take action as soon as we are ready”. He did not expect the Minister of Health or the Department of Health to take the matter forward (Hansard, House of Commons, Seventh Delegated Legislation Committee, Abortion (Northern Ireland) Regulations 2022, cols 6 and 22).

Currently, the provision of abortion services in public health facilities in Northern Ireland remains very limited. The changes to the law which were designed to enable such services to be provided, in compliance with recommendation A of the CEDAW report, have been largely frustrated. No action has yet been taken by either the devolved administration or the United Kingdom government to implement recommendation B of the report, namely that measures should be taken to protect women from harassment by anti-abortion protesters.

The CEDAW report was based on an inquiry carried out during 2016, which included visits by designated members of the CEDAW Committee to a public hospital and a private clinic in Belfast where abortions were performed, and interviews with health care professionals and management, women who had sought or undergone an abortion, and other interested parties. The report concluded at para 19:

The CEDAW Committee found at para 20 that such conduct was one of the factors which rendered access to abortion in Northern Ireland virtually impossible. In listing the violations of rights under CEDAW, it included “Harassment by anti-abortion protesters”, stating at para 70:

It is also relevant to note some of the CEDAW Committee’s other findings, set out at para 73:

In 2018 the Royal College of Obstetricians and Gynaecologists and the Faculty of Sexual and Reproductive Healthcare published their submission to a Home Office review of abortion clinic protests. They reported “serious concerns regarding the ongoing intimidation and harassment of patients and staff outside facilities providing abortion services in the UK”, and expressed their support for the establishment of zones outside clinics where anti-abortion activity could not take place. On the basis of their members’ experience throughout the United Kingdom, including Northern Ireland, they stated:

The protesters’ activities were described as including:

The effects of the activities were described as follows:

The submission explained that even silent protests had a distressing effect:

Considering the consequences of protests outside British abortion clinics in greater detail, the Royal College submission stated:

In response to a question about the possibility of protection by the police under existing laws, the submission stated:

Finally, the submission commented on the effectiveness of safe access zones in other jurisdictions where they had been introduced:

The Royal College submission referred to research carried out by Dr Pam Lowe. The court has been provided with a report by Dr Lowe and Dr Graeme Hayes, “‘A Hard Enough Decision to Make’: Anti-Abortion Activism outside Clinics in the Eyes of Clinic Users – A Report on the comments made by BPAS services users” (2015), based on research in England and Wales. It supports the remarks made about silent protests in the Royal College submission. It reports, for example, that “many [clinic users] perceived the essential elements of a religious vigil … to be both intrusive and highly stressful” (p 17), and that “praying is explicitly seen as being offensive and intrusive, and to constitute a form of confrontation and harassment” (p 19). It was found to be “clear that the presence of activists outside clinics does cause significant alarm and distress to many clinic service users” (ibid).

The court has also been provided with a more recent article by Dr Lowe and Dr Hayes, “Anti-Abortion Clinic Activism, Civil Inattention and the Problem of Gendered Harassment” (2019) 53 Sociology 330, based on research in England and Wales which focused on anti-abortion activism in the form of prayer outside clinics, the display of images of foetuses or babies, and approaching women with the offer of leaflets or counselling. The authors conclude that, although this form of activism is outwardly non-aggressive, it is inherently intrusive and stigmatising, and creates a sense of public exposure in an inappropriate setting. It is found to cause many women to feel upset, anxious or intimidated. The authors state (pp 343-344):

An Australian study concluded that protests outside abortion clinics have a deeply stigmatising, traumatising and “absolutely devastating” effect on patients, that they may result in damage to women’s physical and mental health, and that they had been linked with teenage girls engaging in self-harm and attempted suicide: R Sifris and T Penovic, “Anti-abortion protest and the effectiveness of Victoria’s safe access zones: an analysis” (2018) 44 Monash University Law Review 317, 325-328.

The Bill was introduced in the Assembly in September 2021 by a member of that body who had worked as a volunteer escorting women who attended a private clinic providing abortion services in Belfast, when such volunteers were sought in response to the level of intimidation there.

At the debate on the Second Stage of the Bill, in October 2021, she described what she had seen and experienced when working at the clinic as being “not protests as I understand them”, but “a very deliberate campaign of harassment and intimidation against women”. She described how she had been spat at and assaulted, had holy water splashed on her and had been verbally abused. She described scenes that she had witnessed, and the extreme distress caused to the women who were targeted. She explained that the protests also had consequences for others entering or leaving the buildings. Every woman of childbearing age was targeted. Staff were filmed, threatened and intimidated. This happened despite clinics employing security personnel and installing blackout windows. The current harassment laws did not provide effective protection. The women affected would not report the behaviour to the police, because they wanted to maintain their privacy. Instead, they left the area and did not access the health care they had sought. She had consulted widely during the drafting of the Bill. It had been drafted with a focus on achieving a balance between the competing rights and freedoms under the Human Rights Act. She considered that the Bill achieved a balance between the interests involved. No human rights or equality concerns had been raised by the relevant statutory bodies. The Equality Commission welcomed the Bill. She referred to articles 10 and 12 of CEDAW, and to the findings made by the CEDAW Committee. The Bill responded to its recommendation.

The Bill was supported by the chair of the Assembly’s Committee for Health. He explained that the Committee had previously taken evidence from the chief executives of health trusts, who had raised the issue of protests outside abortion clinics and had expressed their concerns for patients and staff. Trusts had used their own resources to improve security at their premises, in the light of the failure of the police to intervene. In some cases, services had to be moved to other sites because of intimidatory protests. He emphasised that the protests infringed the rights of others, targeting vulnerable patients who were exercising their human right to access the health care to which they were entitled.

Other members of the Assembly also described harassment, intimidation, verbal abuse, the obstruction of clinic entrances and other upsetting occurrences which they had experienced or witnessed outside clinics, referring to the normalisation of harassment of women, and emphasising that women have a fundamental right to privacy and dignity, especially when they are visiting a hospital at a time when they are profoundly vulnerable. They described how they had been contacted not only by patients and staff but also by other people, such as parents accompanying patients to clinics, sometimes for treatment completely unrelated to abortion.

Other members of the Assembly expressed opposition to the Bill on the basis that it would impose a disproportionate restriction on the exercise of the rights set out in articles 9 to 11 of the Convention. They argued that existing laws provided sufficient protection to patients and staff, and that the Bill was too widely drawn.

Members referred to the need to balance competing rights. Those who supported the Bill emphasised the limited nature of the restriction imposed, bearing only on the location of protests, and the need for that specific restriction to be imposed in order to protect the rights of patients and staff. The Bill was supported by a substantial majority, and was referred to the Committee for Health for consideration.

At the Committee Stage, the Committee for Health received 6,459 written submissions, including a detailed submission from the Human Rights Commission, which welcomed the Bill but recommended that safe access zones should be more clearly defined than they were in the Bill as it then stood. The Committee considered the Bill at 12 meetings and took evidence from the Human Rights Commission, the Department of Health, a number of Health and Social Care Trusts (“HSCTs”) and the Police Service of Northern Ireland.

In January 2022 the Committee for Health published its report. It reported that the evidence confirmed the problems experienced by health trusts and clinics, leading on occasions to the relocation of clinics, and the impact on patients and staff. For example, Belfast HSCT reported that protests caused considerable distress and anxiety to patients and staff. The Northern HSCT reported that it had moved the location of its clinic on two occasions because of concerns about the impact of personal and abusive protests on patients, and that there were concerns about patient and staff confidentiality. A representative of Belfast HSCT gave evidence that all HSCTs, with one exception, had found that protests outside abortion clinics had had a significant impact on staff, on patients accessing abortion care, and on patients accessing other health care in the same buildings. The police provided evidence that the Marie Stopes Clinic in Belfast was the focus of intense and sustained protest activity until its closure, with police being deployed on a daily basis. A number of organisations provided evidence of the detrimental impact on those accessing services, and highlighted the impact on particularly vulnerable groups, such as minors and victims of sexual offences, leading in some cases to the deferment of treatment.

The Committee recommended that the definition of safe access zones should be amended, so as to respond to the point made by the Human Rights Commission. It supported the definition of safe access zones as comprising an area of 100 metres from each entrance to or exit from protected premises, which could be extended by up to a further 150 metres if 100 metres was not sufficient to afford safe access at a particular site. Organisations which opposed the Bill expressed concern about clause 6(2)(a), which became clause 5(2)(a) of the Bill as passed. They were concerned about the consequent criminalisation of acts such as praying or handing out leaflets. The Committee was unpersuaded by their concerns. It noted evidence from the Minister of Health which made it clear that the Department of Health did not wish to be responsible for any discretionary decision-making in connection with the arrangements proposed in the Bill. Amendments were proposed which had the effect of eliminating such responsibilities.

In March 2022 the Assembly resumed consideration of the Bill, and of the proposed amendments to it. The amendments recommended by the Committee for Health were made. The chair of the Committee summarised the evidence which the Committee had received from the Commission, and commented:

The Assembly amended the draft Bill, with the support of the Committee for Health, so as to remove a defence that a person had no reasonable way of knowing that a protected person was in a safe access zone. It was explained in the course of the debate that the Police Service of Northern Ireland had advised that the presence of such a defence would have an adverse impact upon the enforceability of the legislation. The Assembly also considered, but rejected after debate, a proposed amendment to introduce into clause 5 a defence of reasonable excuse (a matter which had also been considered in earlier debates). Concerns were expressed that such a defence would be pushed to its limits by protesters and their supporters, and would detract from the clarity and effectiveness of the legislation. The fact that the Bill criminalised protests within safe access zones was also discussed extensively, as it had been in earlier debates and in the Committee for Health’s report. The geographical limits of safe access zones were also considered extensively before being approved. After further consideration, the Bill, as amended, was passed by a substantial majority.

The Bill introduces the concepts of “protected premises” and “protected persons”. Protected premises are premises where treatment for the lawful termination of pregnancy is offered (clause 1), and premises falling within certain specified descriptions, such as a hospital managed by an HSCT or a clinic provided by an HSCT, where information, advice or counselling in respect of termination of pregnancy is offered (clause 2). In either case, in order for premises to be protected premises for the purposes of the Bill, notice must have been given to the Department of Health by the operator of the premises that they wish such designation (clauses 1(3) and 2(4)).

Protected persons are those attending protected premises to access treatment, information, advice or counselling, those accompanying such a person at their invitation, and those working in, or providing services to, the protected premises (clause 3). There are accordingly three categories of protected persons: patients, accompanying persons and staff.

Clause 4 provides for a safe access zone to be established for protected premises. That clause provides:

Accordingly, the establishment of a safe access zone is, in terms of the Bill, the automatic consequence of the operator giving notice that it wishes the premises to be protected premises. There is no room for the exercise of discretion by the Department: it “must” include an entry relating to the premises in the list maintained under clause 7, and the safe access zone is established when that entry is published under clause 7. The default position is that the safe access zone comprises the protected premises themselves, together with the public area outside which lies within 100 metres of each entrance or exit. The operator can however notify the Department that it wishes the safe access zone to be extended by up to 150 metres. It can do so if it is of the opinion that the safe zone comprising the 100-metre public area is not adequate to afford safe access to the premises for protected persons. The extension of the safe access zone is the automatic consequence of the operator giving notice that it wishes the safe access zone to be extended. Again, there is no room for the exercise of discretion by the Department: it must amend the entry relating to the premises in the list maintained under clause 7, and the extended safe access zone is established when the amended entry is published in accordance with clause 7.

Clause 5 prohibits certain types of behaviour within a safe access zone. Sub-clauses (1) and (2) provide:

Clause 6 provides for the enforcement of safe access zones, largely by empowering a constable to direct a person to leave a safe access zone, or to remove the person from the safe access zone, if the constable has reasonable grounds to believe that the person has committed, is committing, or is about to commit, an offence under clause 5(2) or (3).

Clause 7 provides for the publication of a list of protected premises and safe access zones. As explained, it is on such publication that a safe access zone comes into effect: clause 4(4). Clause 7 provides:

Clause 8 requires that the Department publish an annual report on the effectiveness of safe access zones. Clauses 9-11 concern interpretation, commencement and the short title.

Having set out the background to the Bill and its terms, it is now possible to consider the question referred, which was set out at para 5 above. In doing so, I will consider the Bill as it would ordinarily be construed, without reference to section 3 of the Human Rights Act or section 83(2) of the Northern Ireland Act. My consideration of the issues will follow the usual structure of analysis of questions arising in relation to Convention rights.

Not all activities falling within the scope of clause 5 are protected by articles 9 to 11 of the Convention. Some of the behaviour by protesters which is described in the material before the court, such as spitting at individuals, chasing them, threatening them, assaulting them, and subjecting them to verbal abuse, falls within the ambit of clause 5 but is not protected by articles 9, 10 or 11, either because it does not fall within the scope of those articles, or because it falls within the scope of article 17. As I have explained (paras 54 and 58 above), our profound commitment to free and open debate is not a licence for violent or abusive behaviour.

But the impact of clause 5 is not confined to behaviour of that kind; and the Attorney’s reference, restricted as it is to clause 5(2)(a), is not concerned with behaviour of that kind. As counsel for the Attorney submitted, clause 5 is capable of applying to other types of behaviour, such as holding a vigil, praying, and engaging in other non-violent demonstrations. No doubt, there may arise factual questions of some delicacy as to whether particular conduct, in particular circumstances, answers the statutory descriptions in clause 5(2). But there can be no doubt that clause 5 imposes a restriction on behaviour falling within the scope of one or more of articles 9 to 11.

As is accepted by all parties, clause 5 imposes a restriction on the exercise of Convention rights that is prescribed by law. In particular, the extent of any safe access zone is precisely defined, and is a matter of public notice in accordance with the Bill (paras 105 and 108 above).

As is accepted by the parties, the restrictions imposed by the Bill pursue a legitimate aim. Their primary purpose is to ensure that women have access to premises at which treatment or advice concerning the lawful termination of pregnancy is provided, under conditions which respect their privacy and their dignity, thereby enabling them to access the health care they require, and promoting public health. A second purpose is to ensure that the staff who work at those premises are also able to access their place of employment without intimidation, harassment or abuse, thereby ensuring that the health care services in question continue to be provided. In terms of articles 9(2), 10(2) and 11(2) of the Convention, the aims of the Bill answer to the description of “the prevention of disorder” (or, in article 9(2), “the protection of public order”), “the protection of health”, and “the protection of the rights and freedoms of others”.

However, the matter goes beyond there being an aim falling within the scope of articles 9(2), 10(2) and 11(2). The right to access health care in conditions of privacy and dignity, and the right to pursue employment, are protected by article 8 of the Convention. Indeed, it has been established that states are under a positive obligation, under article 8, to create a procedural framework enabling a pregnant woman to exercise effectively her right of access to a lawful abortion: P and S v Poland (2012) 129 BMLR 120, para 99. The same principle would appear to entail that there is also a positive obligation on states, under article 8, to enable a pregnant woman physically to access the premises where abortion services are lawfully provided, without being hindered or harmed in the various ways described in the evidence before the court.

The remaining issue is whether the restriction is “necessary in a democratic society” to achieve the legitimate aims pursued: in other words, whether the restriction is proportionate. That question can be broken down into four elements, following the customary analysis.

It is accepted by the parties that the protection of the article 8 rights of patients and staff is in principle a sufficiently important objective to justify the limitation of rights under articles 9 to 11. That can scarcely be doubted, particularly against the background to the Bill. 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. The same can be said of the importance of enabling the staff of such facilities to access their place of work under acceptable conditions.

The restrictions imposed by clause 5 have a rational connection to the purpose of protecting the privacy and dignity of women and staff accessing abortion facilities, and thereby promoting public health. A measure that seeks to ensure that women seeking a safe termination of pregnancy have unimpeded access to clinics where such treatment is provided, and are not driven to less safe procedures by shaming behaviour, intrusions upon their privacy, or other means of undermining their autonomy, is a rational response to a serious public health issue. The fact that the restrictions are a rational means of achieving the objectives pursued is also demonstrated by experience in other jurisdictions where similar restrictions have been imposed: see para 87 above.

It is argued on behalf of the Attorney that the aim pursued could be achieved by less restrictive means. In that regard, counsel for the Attorney argue that clause 5(2)(a) of the Bill is unduly restrictive, on the basis that clause 5(2)(b) and (c) would have been sufficient in themselves to provide adequate protection.

Clause 5(2)(a) has to be seen in the context of clause 5(2) as a whole. It is convenient to repeat its terms:

Putting the matter broadly, clause 5(2) as whole prohibits behaviour in the immediate vicinity of abortion clinics which, intentionally or recklessly, is liable to cause women not to access the health care services available there. The behaviour is prohibited whether it takes the form of influencing the behaviour of protected persons, physically obstructing their access to the premises where the services are provided, or causing them harassment, alarm or distress. Influencing 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. It is therefore rational for it to be prohibited.

In addition, there is a practical need for clause 5(2)(a) to be in place if clause 5(2)(b) and (c) are to be effective. 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. For the prosecution to prove the charge beyond reasonable doubt in the face of such a defence, would be difficult in all but flagrant cases. The presence of clause 5(2)(a) is therefore not only rationally coherent with the legitimate aim pursued, but is necessary if the legislation is to achieve its intended aim.

Counsel for the Attorney argue in the alternative that the absence from clause 5(2)(a) of a defence of reasonable excuse renders it unduly restrictive. As explained in para 101 above, such a defence was considered and rejected by the Assembly, on the ground that, if such a defence were available, protesters would claim that they were excusably ignorant of the fact that the person whom they approached was a protected person, notwithstanding the breadth of the definition of that expression in clause 3 (para 103 above), or that they did not realise that they were within a safe access zone, notwithstanding the provisions of clause 7 relating to notification of the public (para 108 above). Those were clearly relevant considerations. As the European court stated in Animal Defenders, para 108 (omitting citations):

Counsel for the Attorney contend that clause 5(2)(a) fails to strike a fair balance between the rights of protesters and the general interest of the community, including the rights of the persons protected. In considering that contention, a number of considerations are of particular importance.

First, it is necessary to bear in mind that women and girls of reproductive age who visit hospitals and clinics where treatment or advice relating to abortion are available are likely to be in the early stages of an unwanted pregnancy. They may be feeling ill. The fact that their pregnancy is unwanted and that they have decided to have an abortion, or are contemplating doing so, may very well be placing them under acute emotional and psychological strain. Their personal circumstances may exacerbate that strain. Some will be minors. Some will be victims of sexual offences. Some will be carrying foetuses with abnormalities. Some will be women or girls whose own health is at risk. The women and girls who leave the hospitals and clinics in question may well have just undergone an abortion. They too are likely to be in a highly emotional condition, as well as being in discomfort. Whether pregnant or having just had an abortion, these women will reasonably wish that their condition should be kept private, and that they should not be the focus of intrusive public attention. The present context is therefore one in which the protection of the private lives and autonomy of women, recognised under article 8 of the Convention (as, for example, in A, B and C v Ireland (2010) 53 EHRR 13, paras 212-214 and P and S v Poland, paras 111 and 128), is of particular importance.

Secondly, these women have no way of arriving at and leaving the hospitals and clinics where they can access the treatment and advice that they have decided to obtain, except by means of spaces to which the public have access. They have a reasonable expectation of being able to access that treatment and advice with no greater incursion upon their privacy than is inevitable in accessing a clinic or hospital from a public highway. They have a reasonable expectation of being able to do so without having their autonomy challenged and diminished, whether by attempts by protesters to persuade them to change their minds, or by protesters praying for the souls of foetuses with the intention or effect of provoking feelings of guilt, or by other means calculated to undermine their resolve.

Thirdly, an important aspect of the present case is that the Bill does not prevent the exercise of any right protected by articles 9 to 11 of the Convention, but merely imposes a limitation upon the places where those rights may be exercised. The importance of this feature has been noted by the European court in a number of cases. For example, in Appleby v United Kingdom (2003) 37 EHRR 38, the court observed at para 47, in relation to article 10, that “[t]hat provision, notwithstanding the acknowledged importance of freedom of expression, does not bestow any freedom of forum for the exercise of that right”; a statement which has been repeated in several subsequent cases. The court recognised that the situation would be different “[w]here however the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed”. It went on, in relation to article 11, to find that “largely identical considerations arise under this provision” (para 52). In more recent cases, the European court has again made it clear that legislative restrictions on the location of a protest or demonstration do not destroy the essence of the rights protected, and consequently attract a wider margin of appreciation, than outright bans. For example, in Lashmankin v Russia (2017) 68 EHRR 1 (“Lashmankin”), para 417, the court stated (omitting a citation) that “by contrast to content-based restrictions on freedom of assembly which should be subjected to the most serious scrutiny by this court, in the sphere of restrictions on the location, time or manner of conduct of an assembly the contracting states must be allowed a wider margin of appreciation”.

Fourthly, a further significant aspect of the circumstances with which the Bill is concerned is that women wishing to access reproductive health facilities, and the staff who work there, are a captive audience for protesters who wait outside the premises, so that the women and staff are compelled to listen to speech or witness silent prayer which is unwanted, unwelcome and intrusive.

Fifthly, it is relevant that the Bill is intended to implement the United Kingdom’s international obligations under CEDAW, and more specifically the recommendation in para 86 of the CEDAW report.

Sixthly, it is also relevant that the maximum penalty for an offence under clause 5 is a fine of up to £500. A higher fine, of up to £2,500, can be imposed under clause 6 if the offender resists removal by the police or refuses to obey a direction to leave the safe access zone.

Seventhly, it has to be borne in mind that a wide margin of appreciation is generally appropriate in situations where it is necessary to strike a balance between competing Convention rights, especially in a context, such as abortion, which raises sensitive and controversial questions of ethical and social policy: see, for example, A, B and C v Ireland, para 233.

Counsel for the Attorney emphasise the importance of protests outside hospitals and clinics providing abortion services in contributing to public debate. In response, it might be said that the protesters are more focused on influencing the personal decisions of individual women than on the political question of whether abortion law should be amended. However, in so far as the protests might be argued to contribute to a public debate about abortion, the Bill does not prevent the protesters from continuing to make such a contribution. They can write and distribute books, articles, and other texts; they can speak to individuals and groups in public forums and in any private venue that is willing to accommodate them; they can demonstrate peacefully in countless locations; they can appear on television and speak on the radio; they can post messages on social media and send emails. They can express their views in terms that are uninhibited, vehement, and caustic. They can do so wherever they please, except within the immediate vicinity of hospitals and clinics where abortion services are provided.

Counsel for the Attorney are critical of the extent of the safe access zone, but an area of 100 metres from the entrance or exit to the premises cannot in my opinion be regarded as unjustifiable. The possibility of an extension of the zone by up to 150 metres, where the zone would not otherwise be adequate to afford safe access to the premises, was specifically considered and approved by the Assembly, and 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. A zone of up to 250 metres does not represent an unjustifiable restriction of the rights of protesters, when they remain free to protest anywhere else they please, and when the rights of the patients and staff are also taken into consideration.

Counsel for the Attorney also emphasise the importance to the protesters of the precise location of their protests at the entrances to hospitals and clinics, where they can confront the targets of their protests. Counsel rely upon the dictum of the European court in Sáska v Hungary (Application No 58050/08) (unreported) 27 November 2012, para 21, that “the right to freedom of assembly includes the right to choose the time, place and modalities of the assembly, within the limits established in paragraph 2 of article 11”, and on the statement in Lashmankin, para 405, that “in cases where the time and place of the assembly are crucial to the participants, an order to change the time or the place may constitute an interference with their freedom of assembly”. It is necessary to attend to the words which I have italicised in these general statements.

That submission must be rejected. The legitimate aim of the Bill is to enable women to access reproductive health services without being subjected to interference, whether by means of intrusions upon their privacy and dignity or through other forms of pressure to change their minds. That legislative aim cannot be reconciled with the desire of the protesters to target those women at the very time and place when they are seeking to access those services. Equally, in so far as the aim of the Bill is to ensure that the staff of reproductive health clinics are not subjected to pressure to stop working there, that aim cannot be reconciled with the desire of protesters to target those members of staff as they approach their place of work.

Counsel for the Attorney also submit that there can be no justification for a prohibition of non-violent demonstrations, however close they might be to the hospitals and clinics in question. In that regard, they cite the European court’s judgment in Lashmankin, para 434 (omitting citations):

It is important to be attentive to the context of European cases from which dicta are cited. Lashmankin concerned a statutory ban on holding public events of any kind in the immediate vicinity of court buildings: a wider prohibition than we are concerned with in the present case, and one that lacked as compelling a justification (as was also the position in Sáska v Hungary). Furthermore, in the passage cited, “disorder” is used in the sense in which it is employed in article 11(2) of the Convention, as appears from para 435 of Lashmankin. In that context, where “the prevention of disorder” is equivalent to the phrase “la défense de l’ordre” in the French version of the Convention, “disorder” is not confined to the use of violence.

That view is supported by the European court’s case law on the concept of a “reprehensible act”, which was explained by the Grand Chamber in Kudrevičius, para 173 (omitting footnotes):

The severity of the disruption is further exacerbated by the frequency of the protests. The Royal College submission, for example, referred to “ongoing intimidation and harassment of patients and staff”: para 83 above. The evidence given to the Committee for Health also referred to protests occurring on a daily basis: para 98 above. Under such circumstances, a patient seeking access to lawfully provided health care cannot, for example, schedule her appointment so as to avoid a protest planned for a particular day. The risk of harassment by protesters is present every day. This is evidently relevant to the striking of a fair balance between the rights of protesters and the general interests of the community.

The 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, even if non-violent, had the potential to deter them from availing themselves of those facilities. The legislative judgment that activities falling short of violence are also capable of deterring unimpeded access to clinics is amply supported by the evidence: see paras 84-85 and 88-90 above.

This has been recognised by the courts of a number of countries with comparable systems of law and constitutional traditions. One example is the decision of the Supreme Court of British Columbia in R v Lewis (1996) 24 BCLR (3d) 247, which concerned legislation which prohibited “sidewalk interference” within “access zones” adjacent to abortion clinics. Sidewalk interference was defined as:

Mr Lewis was charged with sidewalk counselling within an access zone after walking there wearing a sandwich board bearing the words “Our Lady of Guadalupe Patron of the Unborn Please Help Us Stop Abortion” (Our Lady of Guadalupe is a representation of the pregnant Virgin Mary). The Supreme Court of British Columbia upheld the constitutionality of the legislation under the Canadian Charter of Rights and Freedoms (in particular, the guarantees of freedom of conscience and religion, freedom of expression, freedom of assembly, and freedom of association), and entered a conviction. In doing so, it adopted a distinction between restrictions as to time, place (or “geography”, as it was put in the judgment) and manner of expression, on the one hand, and more extensive restrictions on freedom to express a particular point of view, on the other hand, which had been developed in earlier cases in Canada and the United States, and has an analogy in the case law of the European court (para 127 above). The restriction in question was only as to place. It was not excessively intrusive:

Nor was the restriction disproportionate:

Another example from Canada is the decision of the Court of Appeal of British Columbia in R v Spratt 2008 BCCA 340. The case concerned the constitutionality of the same legislation as R v Lewis. The appellants were convicted of sidewalk interference within an access zone. One of them had told a member of staff of the clinic that she was doing harm to women and should be aware that abortion increased the risk of breast cancer. The other had spoken to members of staff about the love of God, forgiveness of sin and redemption. Their convictions were upheld. The court emphasised three points.

First, it accepted that “[t]o try to characterize each individual approach to every woman entering the clinic is too difficult a calculus when the intent of the legislation is to give unimpeded access to those entering the clinic. Therefore a clear rule against any interference is the best way to achieve the ends of the legislation” (paras 80-81; emphasis in original). Much the same point was made by the European court in Animal Defenders, para 108, as explained at para 123 above.

Secondly, in response to an argument that the opponents of abortion had a particular interest in being able to express their views at the clinic doors, where they found those to whom they wished to give their message, the Canadian court pointed out that freedom of speech does not include a right to a captive audience (paras 82-84). In that regard, the court quoted a dictum of Douglas J in Lehman v City of Shaker Heights, 418 US 298 (1974), 307:

Thirdly, applying the distinction between content-based restrictions and restrictions as to time, place and manner, the court emphasised that the legislation only restricted the places where opposition to abortion might be expressed (paras 85-86).

It is also relevant to note the decision of the High Court of Australia in Clubb v Edwards [2019] HCA 11, which concerned appeals against conviction under legislation in Victoria and Tasmania which restricted freedom of speech within safe access zones, comprising the area within a radius of 150 metres from premises where abortions were provided. In the Victorian appeal, the appellant stood within a safe access zone, spoke to a couple entering the clinic, and attempted to hand them a pamphlet offering counselling and assistance to enable a pregnancy to proceed to birth. She was convicted under legislation which prohibited “communicating by any means in relation to abortions in a manner that is able to be seen or heard by a person accessing, attempting to access, or leaving premises at which abortions are provided and is reasonably likely to cause distress or anxiety”.

In their judgment upholding the constitutionality of the legislation (in particular, its compatibility with freedom of communication about governmental and political matters), Kiefel CJ and Bell and Keane JJ emphasised that the purpose of the legislation was not to prevent the public expression of views opposed to abortion, but to ensure women’s access to health facilities where abortion services were provided, and to protect the privacy and dignity of women accessing such services. They also emphasised the prophylactic nature of safe access zones, in response to the argument that prohibited conduct might not cause any harm in an individual case (para 79):

The argument that an offence might be constituted by conduct apt to cause no more than hurt feelings was rejected (para 59):

The argument that to proscribe communications in relation to abortion near abortion facilities was to proscribe those communications in the very location where they were typically most effective was also rebutted. Kiefel CJ and Bell and Keane JJ stated (para 83):

The argument that there was no need to proscribe non-violent protests was also rejected. The judges observed that “non-violent protest … may well be apt to shame or frighten a pregnant woman into eschewing the services of a clinic” (para 88). They added (para 89):

I also note the decision of the Court of Appeal in Dulgheriu v Ealing London Borough Council (National Council for Civil Liberties intervening) [2019] EWCA Civ 1490; [2020] 1 WLR 609. The case concerned the lawfulness, and in particular the compatibility with Convention rights, of a statutory order prohibiting various activities within 100 metres of the entrance to an abortion clinic. The prohibited activities were “engaging in any act of approval/disapproval or attempted act of approval/disapproval, with respect to issues related to abortion services, by any means … [including] prayer or counselling”. The lawfulness of the order was upheld on the basis that the restriction of protesters’ rights was necessary in order to accommodate the article 8 rights of women visiting the centre.

One of the few cases of this kind to have come before the institutions of the Council of Europe is Van den Dungen v The Netherlands (Application No 22838/93), a decision of the European Commission on Human Rights given on 22 February 1995. The applicant was an anti-abortion protester who was said to have addressed visitors and employees at an abortion clinic, as they walked from the car park to the clinic, trying to persuade them not to have an abortion by way of showing them enlarged photographs of foetal remains in combination with images of Christ, by calling abortion “child murder” and the clinic’s employees “murderers”, and by handing out leaflets which also contained similar photographs. This led to visitors arriving at the clinic shocked and upset, sometimes to such an extent that treatment had to be postponed. The behaviour was accordingly similar to that described in the present case. The Dutch court granted an injunction barring the applicant from going within 250 metres of the clinic (the same as the maximum distance permitted by the Bill) for a period of six months. The Commission held that article 9 was not engaged, on the basis that “the applicant's activities were primarily aimed at persuading women not to have an abortion”, and “do not constitute the expression of a belief within the meaning of article 9” (para 1) (adopting a similar approach to that previously adopted, in a different context, in Arrowsmith v United Kingdom (1978) 3 EHRR 218). A complaint under article 10 was also rejected, on the basis that “the injunction against the applicant was granted for a limited duration and a specified, limited area”, and “was not aimed at depriving the applicant of his rights under article 10 of the Convention but merely at restricting them in order to protect the rights of others” (para 2). Taking those factors together, the Commission concluded that the interference was proportionate to the legitimate aim pursued in that it could reasonably be considered necessary for the protection of the rights of others.

These authorities, and the reasoning set out earlier in this judgment, support a clear conclusion. Balancing the competing considerations in the present case, the restrictions on Convention rights which will result from clause 5 of the Bill, including clause 5(2)(a), are justifiable. In the language often used by the European court, there is a pressing social need for such restrictions to be imposed, in order to protect the rights of women seeking treatment or advice, in particular, and also in the interests of the wider community, including other patients and the staff of clinics and hospitals.

In the light of that conclusion, the Lord Advocate’s submissions concerning the roles of operators of clinics and hospitals, the Department of Health and the courts, summarised at para 6 above, must be rejected. As has been explained, if the ingredients of an offence under clause 5 are established, then a conviction of the offence will not be a disproportionate interference with the defendant’s Convention rights under articles 9 to 11. It follows that it cannot be incompatible with the Convention for an operator to notify the Department under clauses 1(3), 2(4) or 4(3). For the same reason, there is no risk that any action by the Department of Health in response to such notification will be incompatible with those Convention rights. Furthermore, designation as protected premises, and the extension of a safe access zone, are not in any event dependent on any decision by the Department of Health. Notification of the Department by the operator is in itself sufficient to give the premises the status of protected premises. As regards the courts, there is no proportionality assessment required when a defendant is being tried for an offence under clause 5. That is because either the defendant’s conduct will not engage articles 9 to 11, for example because it is violent, or, if rights under those articles are engaged, the proportionality balance has been struck by the Bill itself.

The right of women in Northern Ireland to access abortion services has now been established in law through the processes of democracy. That legal right should not be obstructed or impaired by the accommodation of claims by opponents of the legislation based, some might think ironically, on the liberal values protected by the Convention. 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.

For all the reasons which I have explained, I conclude that clause 5(2)(a) of the 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 that it is therefore not outside the legislative competence of the Northern Ireland Assembly. The question referred, set out at para 5 above, should therefore be answered in the negative.