UKSC hands down judgment in Reference by the Attorney General for Northern Ireland – Abortion Services


On 7 December 2022, the UK Supreme Court handed down judgment in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32.

The case concerned legislation passed by the Northern Ireland Assembly in March 2022 creating “safe access zones” adjacent to premises providing abortion services. Clause 5(2)(a) of the Bill makes it a criminal offence to “influence” intentionally or recklessly a “protected person” (those accessing abortion services, those accompanying them and staff) within a safe access zone.

The Northern Ireland Attorney General’s reference was not concerned with wider issues relating to abortion in Northern Ireland. Rather, the question referred was whether  clause 5(2)(a) of the Bill disproportionately interferes with protesters’ rights to freedom of conscience, expression and freedom of assembly (protected under Articles 9, 10 and 11 of the European Convention on Human Rights) as it provides no express “reasonable excuse” defence. The Attorney General argued that the Bill disproportionately restricted Convention rights and was therefore outside the Assembly’s legislative competence.

The Supreme Court unanimously held that that clause 5(2)(a) of the Bill is compatible with those Convention rights, despite the lack of a reasonable excuse defence, which it determined not to be a prerequisite for Convention compliance. The Court held that in some cases, a criminal court may be required to conduct a fact-specific assessment of whether conviction would be a proportionate interference with rights under the Convention. However, the Court held that in other cases, proof of the ingredients of an offence themselves will ensure that a conviction will be proportionate. Applying that reasoning, the Court deemed the restrictions imposed by clause 5(2)(a) to be proportionate with Convention rights and the proposed legislation was therefore within the Assembly’s legislative competence.

Blinne Ní Ghrálaigh, Tim James-Matthews and Robbie Stern (instructed by Hodge Jones & Allen) represented law reform and human rights organisation JUSTICE, intervening.

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