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

Factual and Procedural Background

The Legislature enacted the Abortion Services (Safe Access Zones) Bill (“the Bill”) on 24 March 2022. Clause 5(2)(a) would criminalise any act done within a designated “safe access zone” around abortion-service premises if done with the intent, or recklessness, of influencing a protected person. Before the Bill could receive Royal Assent, the Attorney General referred a devolution question to the Supreme Court under section 11(1) of the Northern Ireland Act 1998. The reference asked whether clause 5(2)(a) lies outside the competence of the Legislature because, lacking any defence of reasonable excuse, it allegedly causes a disproportionate interference with protestors’ rights under Articles 9, 10 and 11 of the European Convention on Human Rights (“the Convention”). A full panel, led by Judge Reed, heard submissions from the Attorney General, Attorney Advocate (for the Scottish Government), Company A (a human-rights body), and Company B (a civil-liberties charity).

Legal Issues Presented

1. What is the correct test for determining whether devolved legislation is ultra vires because it disproportionately interferes with Convention rights?
2. Can the ingredients of a criminal offence, without an express defence of reasonable excuse, themselves ensure proportionality under Articles 9–11?
3. Must proportionality always be assessed case-by-case in criminal proceedings engaging Articles 9–11, and if so, by whom?
4. Does clause 5(2)(a) of the Bill meet the proportionality requirements of the Convention?

Arguments of the Parties

Attorney General's Arguments

• Because clause 5(2)(a) has no “reasonable excuse” defence, courts could not assess proportionality in individual prosecutions, contrary to DPP v Ziegler and DPP v Cuciurean.
• The provision therefore breaches Articles 9, 10 and 11 and is beyond competence under section 6(2)(c) of the Northern Ireland Act.

Attorney Advocate's Arguments

• A devolved provision is incompetent only if it will always or almost always operate incompatibly (Christian Institute test).
• Any potential disproportionate impact will be avoided because (i) public authorities designating zones are themselves bound by the Convention and (ii) criminal courts must refuse to convict if that would breach section 6(1) of the Human Rights Act.

Company A's Arguments

• Clause 5(2)(a) is compatible because it would not breach Convention rights in “all or nearly all” cases.
• Even without a statutory excuse, the offence is inherently proportionate since it targets conduct that imperils the privacy, dignity and health of clinic users.

Company B's Arguments

• Whether or not a “reasonable excuse” defence exists is immaterial; section 3 Human Rights Act requires courts to interpret offences compatibly.
• Cuciurean is wrong to suggest proportionality depends on statutory excuses; Ziegler shows proportionality is always fact-specific.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Reed first clarified five “preliminary questions” arising from Ziegler and Cuciurean:

• Abstract challenges require proof that a provision will be incompatible in “all or almost all” applications (Christian Institute).
• Offence ingredients can, by themselves, achieve proportionality; statutory excuses are not always required.
• Proportionality assessments are legal evaluations, not pure questions of fact, and need not be undertaken by the trial fact-finder.

Turning to the Bill, the Court applied the conventional four-stage proportionality test.

1. Legitimate aim: safeguarding patients’ Article 8 rights to privacy, dignity and timely healthcare, and protecting staff safety.
2. Rational connection: Prohibiting intentional or reckless influence, obstruction or distress within a limited zone directly furthers those aims.
3. Necessity: Evidence showed existing laws failed; removing clause 5(2)(a) or adding a “reasonable excuse” defence would undermine enforceability and invite uncertainty and abuse.
4. Fair balance:
   • Protestors face only a location-based limit and retain ample alternative forums.
   • Zones of 100–250 m minimally intrude on expression but critically protect a captive, vulnerable audience.
   • Maximum sanction is a modest fine (£500).
   • International and comparative authorities, plus CEDAW obligations, underline a “pressing social need”.

Accordingly, any conviction under clause 5 would, by virtue of the offence’s structure, be proportionate. No separate, case-specific balancing is required, and public authorities implementing the scheme would not act incompatibly.

Holding and Implications

HOLDING: The Court answered the reference in the negative. Clause 5(2)(a) is within the legislative competence of the Legislature because it does not involve a disproportionate interference with Articles 9, 10 or 11 rights.

Implications: The ruling confirms that devolved legislatures may enact blanket, location-based restrictions to protect access to lawful healthcare where the offence itself strikes a proportionate balance. It narrows the reach of Ziegler, affirms the “all-or-almost-all” test for abstract challenges, and provides a template for other UK jurisdictions contemplating similar safe-access legislation.