January 25, 2023

The Northern Ireland Assembly can enact legislation to create buffer zones around abortion clinics to protect users and staff, the UK’s highest court has ruled.

The unanimous high court verdict means the assembly can proceed with the Abortion Services (Safe Zones) Act (Northern Ireland), which criminalizes people entering specified areas and influencing people visiting clinics.

The Attorney General for Northern Ireland argued that Article 5(2) of the Bill was a disproportionate interference with the freedom of conscience, expression and assembly of anti-abortion protesters and protesters, protected by Articles 9, 10 and 11 respectively of the European Convention on Human Rights (ECHR), and thus outside the legislative competence of the Assembly.

However, Wednesday’s written judgment by Lord Reed says the restrictions pursue a legitimate aim – promoting public health – and are compatible with the ECHR rights of anti-abortion protesters.

“The right of women in Northern Ireland to access abortion services is now enshrined in law through democratic processes,” he said. “That legal right must not be hindered or impaired by the claims of opponents of the legislation, some would think ironically, based on the liberal values ​​protected by the convention.

“A justice system that allowed those who had lost the political debate to undermine legislation that allows abortion by relying on freedom of conscience, freedom of speech and freedom of assembly would, in practice, bring the law into line with the values ​​of its opponents of reform and depriving women of the protection of the rights established by law.”

Under clause 5(2), it is an offense to do anything, intentionally or recklessly, in a safe entry area that has the effect of influencing a person visiting an abortion clinic or other protected premises for protected purposes. The Attorney General had argued that it was disproportionate because there was no defense for those who act with a reasonable excuse. But that argument was rejected by the court.

Reed wrote: “A measure to ensure that women seeking safe termination of pregnancy have unfettered access to clinics offering such treatment, and are not forced into less safe procedures by embarrassing behaviour, invasion of privacy or other means of undermining their autonomy is a rational response to a serious public health problem.”

The verdict was welcomed by abortion rights activists, including in Scotland, where parliament had been awaiting the decision before proceeding with its own plans for buffer zones. The MSP Gillian Mackay, who proposed the Scottish bill, said it could now “progress at a rapid pace”.

Alyson Kilpatrick, the Chief Commissioner of the Northern Ireland Human Rights Commission, who intervened in the case, said the bill should be given urgent royal assent and called the verdict “a positive affirmation of the right of women and girls to protection against harassment when access to these services”.

The other intervener, Justice, welcomed the protection of women accessing abortion services, but expressed concern that the ruling could have significant implications for protest rights in other contexts, “from climate change to racial inequality.” It had wanted the judges to establish that courts are always required to carry out a proportionality exercise when deciding whether or not to convict in circumstances where Articles 9, 10 and/or 11 apply, but they declined to do so. to do.

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