Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022]: The proportionality of safe access zone legislation

Abstract

In an unanimous judgment given by Lord Reed on 7 December 2022, the Supreme Court of the United Kingdom (UKSC) held that clause 5(2)(a) of the Abortion Services (Safe Access Zone) (Northern Ireland) Bill is a proportionate interference with the rights of those who wish to express opposition to abortion services in Northern Ireland. This clause would make it an offence to do an act within the safe access zone with the intention of or being reckless as to the possibility of directly or indirectly influencing a protected person. In this comment, I analyse the reasoning of the UKSC. I consider, first, the clarifications offered by the UKSC on issues related to the proportionality assessment itself. I then turn my attention to the application of the proportionality test by the UKSC to the facts of the reference. I conclude that the reasoning of the UKSC in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill is sound. The UKSC’s decision is relevant to plans to introduce similar legislation in Scotland and to any future human rights based challenges to the English and Welsh Public Order Bill, which will create a similar offence to the one in clause 5(2)(a) of the Northern Ireland Bill when it becomes law later this year. Moreover, the decision is significant because the UKSC had not previously considered the proportionality of safe access zone legislation. The Abortion Services (Safe Access Zone) (Northern Ireland) Bill has now received Royal Assent.