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Fact Sheet: NI Human Rights Commission Intervenes in Supreme Court Case on Abortion Services (Safe Access Zones) Bill

18 Jul 2022


The Northern Ireland Human Rights Commission has sought, and been granted leave, to intervene in the referral by the Attorney General for Northern Ireland to the Supreme Court on the Abortion Services (Safe Access Zones) Bill.

Read our fact sheet for information on the case and what the Commission's stance and role is in relation to the legal challenge.

What is the current law in Northern Ireland on Safe Access Zones?

  • Northern Ireland does not currently have legislation providing for safe access zones around health and social care facilities that provide reproductive healthcare services. Protests can, and routinely do, take place at the entrances to medical facilities that offer what limited termination services are available in Northern Ireland, causing distress and alarm not just for those seeking to use these facilities, but also staff that work there. There is no effective legal redress for those accessing abortion facilities to protect them from harassment. Other medical services that are unrelated to reproductive healthcare are also provided at the same sites, so those availing of or helping perform other health care services are having to endure these protests at the entrances to their sites.
  • The Abortion Services (Safe Access Zones) Bill was passed by the Northern Ireland Assembly on 24 March 2022 and provides for the Department of Health to establish safe access zones for premises providing abortion services. It also creates a criminal offence to do an act or make a recording in a safe access zone with the intent of, or reckless effect of directly or indirectly influencing, preventing or impeding access, or causing harassment, alarm or distress to a person attending a protected premises.

Why is this case being taken?

  • The Attorney General for Northern Ireland is using their powers of referral to bring a challenge to the Supreme Court, arguing that the Abortion Services (Safe Access Zones) Bill is beyond the legislative competency of the Northern Ireland Assembly as it breaches the European Convention on Human Rights, as incorporated by the Human Rights Act 1998. The Attorney General for Northern Ireland is asking the Supreme Court to consider whether the offence created by Clause 5(2)(a) of the Abortion Services (Safe Access Zones) Bill, which does not provide for a defence of ‘reasonable excuse’, is a proportionate interference with the rights of those who wish to express opposition to abortion services in Northern Ireland.
  • Under clause 5(2)(a) of the Abortion Services (Safe Access Zones) Bill it is an offence to do anything, intentionally or recklessly, in a safe access zone which has the effect of influencing a person attending an abortion clinic or other protected premises for protected purposes. There is no defence for those who act with ‘reasonable excuse’.
  • ‘Reasonable excuse’ or ‘lawful excuse’ can be a defence to an offence under criminal law. There is no set definition of what precisely would constitute a ’reasonable excuse’ for any situation, however there are some examples in case law where the courts have grappled with the principle.
  • For example, in R v Terence Jones [1995] 1 Cr App R 262, the Court of Appeal in England and Wales considered whether the appellant’s mistaken belief that he held a valid firearms certificate could amount to a reasonable excuse and found that it did. A reasonable excuse can be ‘objective’ e.g. whether a reasonable person would consider it excusable in the circumstances, but can also be ‘subjective’ e.g. what that particular person in that particular circumstance considered to be ‘reasonable’.
  • A recent example of ‘reasonable excuse’ in law would be the Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020. This legislation set out restrictions on movement and gatherings ‘without reasonable excuse’. The legislation also set out a list of examples of ‘reasonable excuse’ i.e. to obtain basic necessities or to attend the funeral of a close family member, however the examples were non-exhaustive and it would be up to a court to extend or include grounds not expressly mentioned.

When will the case take place?

  • The Supreme Court hearing will take place on the 19 July and 20 July 2022. It will be broadcast live on the Supreme Court website from 10.30am on both days.
  • You can view a short summary of the case on the Supreme Court website here.

Who is involved in the case?

  • The Appellant is the Attorney General for Northern Ireland. The Respondent is the Lord Advocate of Scotland. Intervenors in the case are the Northern Ireland Human Rights Commission and JUSTICE.
  • The case will be heard by Justices Lord Reed, Lord Kitchin, Lord Burrows, Lady Rose, Lord Lloyd–Jones, Lord Carloway, and Dame Siobhan Keegan.
  • The Commission’s counsel for the case are David Blundell QC and Yaaser Vanderman of Landmark Chambers.

What is the NI Human Rights Commission’s role in this case?

  • The Commission has sought, and been granted leave, to intervene in the referral to the Supreme Court as, due to the Commission’s unique human rights functions, expertise and previous role in relation to the Bill itself, we are particularly well-placed to assist the Court.
  • The Commission has brought a number of proceedings in the last few years on the issue of access to abortion in Northern Ireland, including Re Northern Ireland Human Rights Commission [2021] NIQB 91, a successful challenge to the failure of the Secretary of State for NI to ensure an abortion service was available in Northern IrelandI in line with the Abortion (Northern Ireland) (No.2) Regulations 2020. The Commission has also been a notice party or intervener in a number of related cases in the last few years, including Re SPUC Pro-Life [2022] NIQB 9, a challenge to the lawfulness of the Abortion (Northern Ireland) Regulations 2021 and the Abortion Services Directions 2021, which were made in an attempt to ensure implementation of the services legalised by the Abortion (Northern Ireland) (No.2) Regulations 2020.

What is the NI Human Rights Commission’s position?

  • In March we welcomed the passing of the Abortion Services (Safe Access Zones) (Northern Ireland) Bill by the Northern Ireland Assembly. The Bill helps Northern Ireland fulfil its human rights commitments as recommended by the United Nations Committee on the Elimination of Discrimination Against Women. In its 2018 Inquiry, the UN Committee recommended that the NI Executive “protect women from harassment by pro-life protesters by investigating complaints and prosecuting and punishing perpetrators”.
  • The Commission had previously responded to the consultation process of the Bill.
  • In our 2021 Annual Statement, safe access zones are contained under the section on access to reproductive healthcare. This issue is marked as a red, meaning it is a subject “that requires immediate action by the UK Government, NI Executive or relevant public authorities where the issue may be an ongoing violation or abuse of human rights within NI.” The Commission recommended that “steps are taken to ensure women and girls are protected from harassment when accessing family planning information and abortion services in line with the UN Committee on the Elimination of Violence Against Women Inquiry recommendations. This includes enabling the creation of safe or buffer zones as required, and ensuring that effective laws are in place to enable complaints of such harassments to be effectively investigated, and that perpetrators are dealt with in accordance with such laws.
  • We believe the Bill helps protect the Article 8 (right to private and family life) rights of those women and girls accessing abortion services, as well as the staff providing them. As there is no current legislation in place, we wish to see this Bill enacted as a matter of urgency.
  • During the consultation process, the Commission acknowledged the competing human rights engaged in this Bill including Article 8 (right to private and family life), Article 9 (Right to freedom of thought, conscience and religion), Article 10 (Right to freedom of expression) and Article 11 (Right to freedom of assembly and association) from the European Convention on Human Rights. We are aware of the importance of balancing competing human rights on this sensitive issue, and the need for any limitations to be proportionate.
  • The Commission believes clause 5(2)(a) of the Bill is proportionate in all circumstances in terms of balancing competing human rights, including the lack of a “reasonable excuse” proviso. Therefore we believe the Bill is human rights compliant, and is therefore within the legislative competency of the Northern Ireland Assembly.
  • As part of our intervention the Commission also wishes to make submissions on how the Bill works, including by reference to the relationship between the Bill and the Human Rights Act 1998, and the margin of appreciation to be afforded to the Northern Ireland Assembly in passing a Private Member’s Bill on a sensitive social issue.

What human rights are involved in this case?

  • The justiciable rights engaged are those from European Convention on Human Rights, as incorporated by the Human Rights Act 1998.
    • Article 8 – Right to private and family life.
    • Article 9 – Right to freedom of thought, conscience and religion.
    • Article 10 – Right to freedom of expression.
    • Article 11 – Right to freedom of assembly and association.

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