Protest and proportionality in the Supreme Court: The Safe Access Zones Bill Reference  UKSC 32
14 December 2022
Abortion in Northern Ireland has had a fraught and frequently distressing history. Until 2019 when the UK Parliament reformed the law, the jurisdiction had the most restrictive approach to abortion in the UK. But even this reform has not reformed the reality, either for those seeking abortion services or information and counselling on such services or for those who work at providers of such services lawfully. I have previously written about the situation as it stood in March 2021, and the reality has changed little since then, with two notable exceptions. In March 2022, the Northern Ireland Assembly passed the Abortion Services (Safe Access Zones) Bill (Northern Ireland) (‘SAZ Bill’) to create buffer zones around lawful abortion providers, in an attempt to criminalise the harassment and intimidation of people who seek or work in such places. On 2 December 2022, tired of the glacial pace and political controversy in commissioning abortion services, the Secretary of State for Northern Ireland moved to commission such services himself. In the interim, the Attorney General for Northern Ireland (‘AGNI’) referred the SAZ Bill to the UK Supreme Court to determine whether it was lawful.
On 7 December 2022, the UK Supreme Court handed down judgment in the Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill (‘SAZ Reference’). The question for the Supreme Court was whether the Assembly had the necessary legislative competence to pass this Bill, bearing in mind that the Assembly cannot make laws which are incompatible with the ECHR.
But the SAZ Reference also drew another ECHR issue to the Court’s attention: the assessment of proportionality and reasonable excuse defences in criminal trials involving protests. The main points here were the consideration of the Court’s previous judgment in Ziegler and the judgment of the Divisional Court (England and Wales) in Cuciurean. Unusually for a devolution reference, therefore, the Supreme Court sat as a panel of seven Justices. The SAZ Reference judgment was unanimous and authored by Lord Reed.
This post will look at both issues.
The Bill provisions
The SAZ Bill has four main interrelated components. First, it defines ‘protected premises’ which are facilities where lawful abortion services are carried out and the operator of such a facility has notified the Northern Ireland Department of Health of the intention for the facility to be protected as such. Alternatively, protected premises also include any premises approved by the Department which provide information, advice or counselling relating to abortion services, with the operator of such premises notifying the Department of the intention to be protected premises. Second, the SAZ Bill defines ‘protected persons’ as anyone attending protected premises to access treatment, information, advice or counselling, anyone accompanying a person seeking such access or anyone working at such premises. Third, the Bill establishes ‘safe access zones’, defined as the public area within at least 100 m (extendable to 150 m) from each entrance to and exit from protected premises. Fourth, and the main part for the Court, the Bill creates two offences within safe access zones: the first is the criminalisation of any act with intent or recklessness as to whether that act influences a protected person, prevents or impedes access of protected premises by a protected person or causes a protected person alarm, harassment or distress. The second such offence criminalises the recording of a protected person without their consent within a protected zone, with intent or recklessness as to whether that recording has any of the same effects as the first offence. Importantly, neither offence has a ‘reasonable excuse’ defence, even though such a defence was mooted in Assembly debates during the fourth or ‘Further Consideration’ stage of the Bill’s passage.
The preliminary point: statutory interpretation and legislative competence
As a preliminary point, the Court considered the test which the Bill must pass in order to be held to be within the Assembly’s competence. There is an important point to be made here, considering that this was a devolution reference under section 11 of the Northern Ireland Act 1998 and not a post-enactment challenge grounded on a specific and real factual matrix. This is thus an ab ante challenge, in respect of which the Supreme Court had, in Christian Institute v Lord Advocate (a Scottish case), stated that ab ante cases test whether the legislation under challenge ‘is capable of being operated in a manner which is compatible with [ECHR] rights in that it will not give rise to an unjustified interference … in all or almost all cases’ ().
In the SAZ Reference, the Court pointed to a tension between the test in Christian Institute and a later citation of it in Re McLaughlin. McLaughlin was a challenge to the provision of widowed parent’s allowance being paid to surviving spouses but not surviving unmarried partners under Article 8 ECHR (read with Article 14). The challenge was successful on this point and has since been followed in analogous situations. In McLaughlin, the Christian Institute test was cited by Lady Hale, who referred to legislation operating incompatibly in ‘a legally significant number of cases’ (). In the SAZ Reference, Lord Reed indicated that this was an inaccurate citation of the Christian Institute test and reiterated the original form of that test as accurate (). With respect, this appears to be a problematic reading of the relevant passages across the two cases. In Christian Institute, the Court had talked about requiring legislation to operate compatibly (‘not give rise to an unjustified interference (emphasis supplied)’) in all or almost all cases, leaving open the possibility that compatible legislation may nevertheless operate incompatibly in some cases. In McLaughlin, by contrast, the reference to ‘legally significant’ was to cases where legislation may operate incompatibly. Thus, contrary to how the AGNI had characterised the words used in McLaughlin (‘less demanding’ than in Christian Institute, see SAZ Reference ), McLaughlin was instead the corollary to Christian Institute: if legislation operated incompatibly in a legally significant number of cases, it cannot be said to operate compatibly in all or almost all cases, thus failing the test in Christian Institute. Read in this way, the Court’s reiteration of the Christian Institute test in the SAZ Reference seems unnecessary, especially as regards the ‘clarification’ of Lady Hale’s words in McLaughlin.
The clarification of Ziegler and Cuciurean
At issue for the Supreme Court was whether the criminalisation of influencing a protected person (clause 5(2)(a) of the SAZ Bill) disproportionately interfered with three ECHR provisions: Article 9 and the protection of religious freedoms, Article 10 and the protection of free speech and expression and Article 11 and the protection of free assembly. Central to this question was the issue of proportionality. The Court, therefore, began not with the Bill, but with Ziegler and Cuciurean. There were two main points underlying the Court’s consideration of both cases: proportionality was a legal test and not a factual one, and that general legal prohibitions (such as might be enacted in statutes) may be proportionate in themselves without requiring a proportionality analysis in cases where these general prohibitions operate. There is a great deal of detail and complexity in the discussion of both cases, including the historical approaches to ‘lawful excuse’ or ‘reasonable excuse’ defences. Not all of this will be covered here (not being relevant to the relevant ECHR rights in this case), but the Court’s approach to proportionality in general is of great significance to how courts may now deal with matters under the Human Rights Act 1998.
The Court’s consideration of Ziegler begins with a pointed observation: that the remarks of Lords Hamblen and Stephens (who delivered the judgment in Ziegler) about proportionality being a ‘fact-specific enquiry … requir[ing] the evaluation of the circumstances in the individual case’ should not be considered a universal rule. Instead, these remarks should be confined to the trial of offences under section 137 of the Highways Act 1980 (wilful obstruction of a highway without lawful authority or excuse), where ECHR rights under Articles 9, 10 and 11 were raised (SAZ Reference, -). The same point was made by the Divisional Court in Cuciurean (more on that further below).
This is, with respect, a strange observation. Ziegler in the Supreme Court was concerned with answering two questions certified for appeal by the Divisional Court, the first of which was: ‘What is the test to be applied by an appellate court to an assessment of the decision of the trial court in respect of a statutory defence of “lawful excuse” when Convention rights are engaged in a criminal matter?’ (Ziegler, ). While the second question was concerned with the section 137 offence, it followed the first question, in that the first question asked for a general test, and the second question asked for that test to be specifically applied. In the SAZ Reference, this point seems to have eluded the Court’s criticism of one of the intervenors’ (JUSTICE) position that Ziegler was (at the very least) capable of being read as having laid down a universal rule.
Substantively, the first question in Ziegler asked the Supreme Court of the appropriate way in which proportionality should be judicially assessed – whether as a question of fact, the answer being appealable only if some error of law led to such a finding (with which the majority in Ziegler agreed) or a question of law which should be appealable in any event (which was favoured by the minority). In the SAZ Reference, it was the minority view in Ziegler which prevailed, but with the additional point that general legislative measures may themselves be proportionate without evaluated against the specific factual circumstances of a particular case (). But here, the Court in the SAZ Reference was faced with the European Court of Human Rights’ decision in Perinçek v Switzerland, in which the Grand Chamber specifically stated that in interferences with free speech which lead to criminal convictions, ‘it is normally not sufficient that the interference was imposed because its subject-matter fell within a particular category or was caught by a legal rule formulated in general terms; what is rather required is that it was necessary in the specific circumstances’ ().
In the SAZ Reference, the Court focussed on the word ‘normally’. Perinçek was a case concerning the criminalisation in Swiss law of genocide denial and specifically, that of the Armenian Genocide, as a disproportionate interference with Article 10 rights. The Grand Chamber had pointed to the Swiss Government’s acceptance that criminalisation needed to be balanced against free speech and expression in individual cases ‘in such a way that only truly blameworthy cases would result in penalties’ and that the Swiss courts had not ‘paid any particular heed to this balance’ (Perinçek, -). In the SAZ Reference, the Court pointed out these passages in the Grand Chamber decision, ostensibly in order to distinguish Perinçek from the SAZ Bill (SAZ Reference ). However, as will become clear further below, there are certain circumstances surrounding the passage of the SAZ Bill which muddy its distinction from the circumstances of Perinçek.
Cuciurean received different treatment from Ziegler; given that the Divisional Court’s position on Ziegler in Cuciurean aligned with that of the Supreme Court in the SAZ Reference (as set out earlier), there was no real need to clarify the impact of the latter case. The Supreme Court did, however, lay down general guidance on how to approach proportionality issues in criminal trials where rights under Articles 9, 10 and 11 of the ECHR are raised. First, there is a question whether those rights are engaged at all, considering certain acts (for example, incitement to violence or criminal damage to property) fall outside the scope of those rights (SAZ Reference, ). Second, the question arises whether the ingredients of the offence(s) at trial themselves satisfy the proportionality requirement (SAZ Reference, ). Third, if the ingredients of the offence do not satisfy the requirement of proportionality, then the trial court may use the interpretive duty under section 3 of the Human Rights Act to make the offence ECHR-compliant or allow for a proportionality assessment (if the offence is statutory; if the offence is a common law offence, the court may ‘develop the common law so as to render the offence compatible with Convention rights’, SAZ Reference, ).
A case which the Supreme Court did not consider in its judgment, but which was (at least) referred to in oral argument was Lee Brown v PPSNI. Brown was an appeal by way of case stated in the Northern Ireland Court of Appeal, concerning the proportionality of a conviction for publishing or distributing threatening, abusive or insulting written material against the defendant’s free speech rights under Article 10 of the ECHR. The defendant had been convicted of the offence, with the District Judge being satisfied that the conviction was a proportionate interference. An appeal to the County Court was dismissed. The Court of Appeal allowed the case stated appeal on the basis that the District Judge had not considered or balanced the competing interests between the prosecution and the defendant’s ECHR rights. Brown was important for two reasons. First, it applied Ziegler in a way which the Divisional Court had held to be incorrect in Cuciurean. Thus, there was an obvious tension between high judicial authority in different jurisdictions in the UK. Second, the Court of Appeal in Brown had favoured the approach to the role of appellate courts in Ziegler over its own broader statutory jurisdiction (the Court of Appeal is expressly empowered to make findings of fact for itself). The role of appellate courts following Ziegler was not considered in Cuciurean – only whether Ziegler had laid down a universal role or not.
The net effect of the Court’s consideration of Ziegler and Cuciurean was therefore twofold. First, that proportionality analyses need not be carried out in every criminal trial where the defendant raises issues under Articles 9, 10 and 11 of the ECHR. Second, where it is carried out, it is not a purely fact-dependant exercise. The latter point in particular means that criminal appeals from cases involving protests can now be more interventionist, with appellate courts themselves taking up the question whether a criminal conviction would be a proportionate interference with ECHR rights.
The assessment of the SAZ Bill
Setting out the factual background to the Bill, the Supreme Court explores in great detail the harrowing circumstances which necessitated the Bill. Vulnerable, anxious women and those who assisted them were spat at, assaulted, verbally abused and splashed with holy water (). Clare Bailey, the former leader of the Green Party Northern Ireland who introduced the SAZ Bill in the previous Assembly, described her own experience at the receiving end of ‘a very deliberate campaign of harassment and intimidation against women’.
The Bill having been introduced and voted through its second stage; it came before the Assembly Committee for Health for consideration. The Committee Report makes for interesting reading, with one of the most relevant aspects being a remark from then Minister of Health Robin Swann MLA. The Bill as introduced had conferred discretionary powers on the Minister’s Department regarding the location and extent of a safe access zone. The Minister made it clear that he did not think such discretionary powers were appropriate for the Department. The full passage is worth setting out:
‘The Minister advised that in making these decisions, his Department would become responsible for balancing the safety and dignity of protected persons and the right to respect for private and family life on the one hand against the right to manifest religious belief and the rights to freedom of assembly and expression on the other. In the Minister’s view, these are not appropriate functions for the Department of Health, as it does not, and should not, have competence in this arena and stating that such matters are therefore better left to the judicial system.’
Matters being left to judicial discretion, including the operation of a ‘reasonable excuse’ defence to clause 5(2)(a), were developed further in the fourth stage of the Bill’s passage through the Assembly, where an amendment which would have added a ‘reasonable excuse’ defence was supported by the Bill’s sponsor and defeated by 4 votes.
These points demonstrate that the debate surrounding the proportionality of the SAZ Bill’s offences in general, and clause 5(2)(a) in particular, were complex, nuanced and decided, on the point of a proposed defence, on a knife-edge. This bears similarities with the deliberations surrounding the Swiss law in Perinçek, which the Supreme Court distinguished in the SAZ Reference. These nuances and complexities, moreover, were accounted for in the positions of the Lord Advocate and JUSTICE in respect of the question of the Assembly’s competence over clause 5(2)(a). Both parties invited the Court to declare that the clause was within competence, inter alia because a conviction under this clause would nevertheless be subject to the trial court’s obligations under the Human Rights Act, and thus enable a proportionality analysis of any conviction on a case-by-case basis (SAZ Reference,  and ).
Turning to the Court’s consideration of the main issue, its analysis was concise and uncomplicated on the majority of issues. The Court held, rather straightforwardly (and unsurprisingly) that clause 5 of the SAZ Bill restricted rights under Articles 9-11 of the ECHR (-), that these restrictions were prescribed by law (i.e., the Bill itself) () and that the Bill pursues a legitimate aim – that of ensuring access to abortion facilities for treatment, advice and employment () and further, that of ensuring access to healthcare (). On several of these issues, the parties were also agreed.
In its assessment of whether the Bill’s restrictions were necessary in a democratic society (the proportionality analysis), the parties agreed (and the Court, with them), that the Bill’s aim (ensuring access to protected persons) was sufficiently importance to justify interferences under Articles 9-11 (). Moreover, the Court held that there was a rational connection between the Bill’s aim and the means by which it seeks to achieve that aim ().
The Court’s deliberations on the third and fourth proportionality questions, however, were more elaborate. The third question (whether there were less restrictive alternative means available than those in the Bill) was answered in the affirmative, with the Court noting that the Assembly had debated and rejected the ‘reasonable excuse’ defence, inter alia, because of the possibility of the defence being used (and abused) to effectively nullify the Bill’s aim (-).
The fourth question (whether the Bill strikes a fair balance between individual rights and the interests of the community) had the most detailed answer. It is unnecessary to set out each factor the Court considered to be relevant to answer this question, but it is important to note that the factors can be divided into three broad categories. First, the impact of protest, influence and behaviour which might satisfy the requirements of harassment, on women seeking to access abortion services or advise on those services, or employees of those services (which, it is important to remember, provide those service lawfully) (- and ). Second, the restrictions imposed by the Bill on rights under Articles 9-11 are themselves spatially limited: the offences under clause 5 are not outright bans throughout Northern Ireland () and the penalties for breaching clauses 5 and 6 are monetary (and limited) rather than custodial (). Third, the ECHR grants States a wide margin of appreciation in matters involving ‘sensitive and controversial questions of ethical and social policy’ such as abortion ().
These points provided answers to the AGNI’s concerns about bans on individual protests surrounding abortion as stifling public debate on the issue as well as the criticism of the extent of the safe access zones as defined in the Bill (-). Both points were rejected by the Court by pointing to the spatially limited nature of the offences under clause 5, observing that the 100-150 m limits were not unjustified ().
Relatedly, in oral argument (Day 2, afternoon session) counsel for JUSTICE (Blinne Ní Ghrálaigh) raised the possibility that a safe access zone within 150 m of an abortion clinic may unavoidably extend to sites unrelated to abortion clinics. This is true of at least one such clinic (in a busy high street) which I pass by daily on my morning commute to work. Even a 100 m safe access zone would exclude numerous other businesses and an extension of such a zone may even exclude notable sites of public gathering such as Belfast City Hall. The point of this is not to argue against the aim of the Bill, but to set out what a trial court may be faced with in a prosecution under clause 5. But these matters were not explored by the Court in its judgment. Instead, the Court drew on judgments in similar matters across a range of jurisdictions, including British Columbia, Ontario, Victoria, Tasmania and a Dutch case determined by the erstwhile European Commission on Human Rights (-). In its concluding remarks on the substantive question, the Court set out expansive guidance on clause 5 offences: no proportionality analysis need be conducted by a trial court as the ingredients of the offences themselves satisfy proportionality ab initio ().
In law, the framing of a question is critical. The Court’s concluding remarks on its judgment in the SAZ Reference provide some insights on its framing of the substantive question of the SAZ Bill’s ECHR compliance:
‘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.’
The Court thus framed the question as a balancing exercise between access to reproductive healthcare and the expression of opinions on the availability of that healthcare. Quite apart from the strangeness of this remark in the context of a case where none of the parties or intervenors sought to ‘undermine’ legislation permitting abortion (the SAZ Bill, of course, does not permit abortion services but merely protects access to them), the Court’s framing of the issues surrounding the clause 5 offences was narrower than their operation might be. Of course, the SAZ Reference is an illustration of the risks inherent in the Supreme Court’s devolution jurisdiction. The SAZ Bill is not yet law and has not yet come into operation. The reality of its operation in Northern Ireland, therefore, is currently a matter of conjecture (even accounting for comparative situations to which the Court drew attention). But the Court’s guidance in relation to the offences created by the Bill has the effect of virtually eliminating the possibility of hard cases, grounded in real circumstances involving real people, being taken to test the proper limits of those offences. The discretion may now shift onto the police or prosecutorial authorities.
Let us be clear that the Court declaring the SAZ Bill to be ECHR-compliant is a significant milestone in the history of women’s rights in Northern Ireland. Access to safe and lawful abortion services is a matter of reproductive healthcare and Northern Ireland’s history in this respect was a textbook case in gender discrimination (see the relevant CEDAW report). But this is not where the Court’s judgment stops.
More widely, the Court’s clarification of Ziegler, and its endorsement of the approach in Cuciurean, is likely to have significant impacts on the increasing trend towards criminalising protests and associated conduct. In that respect, the Supreme Court’s judgment in the SAZ Reference speaks not only to the protection of vulnerable women facing abusive and threatening behaviour for accessing healthcare, but also to those who might, at some point in the future, find themselves facing up to 51 weeks in prison for protesting a continued dependence on fossil fuels by locking onto another person, without reasonable excuse, and in a way capable of causing serious disruption (whether or not they cause serious disruption).