Introduction

On the 7 December 2022, the judgment of the UK Supreme Court in the Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill (‘SAZ’) affirmed the legality of a measure aimed at strengthening the exercise of the right to abortion in Northern Ireland (NI). The case concerned a challenge to the legislative competency of the Northern Ireland Assembly (‘the Assembly’) to introduce a Bill curbing the right to protest outside of abortion clinics, which the Attorney General for Northern Ireland (‘AG’) contented to be incompatible with guarantees under the European Convention on Human Rights (‘ECHR’ or ‘the Convention’). The Bill intended to protect those accessing abortion clinics from harassment by creating “safe access zones” around the clinics, within which it would be an offence to influence a protected person, whether directly or indirectly [Clause 5(2)(a)]. This measure was considered necessary to fulfil positive obligations under the ECHR to provide an effective procedural framework to enable pregnant people to access lawful abortion (Articles 8 and 3 of the ECHR). At the same time, curbing anti-abortion demonstrations within the clinic’s vicinity undoubtedly interfered with another protected right, the right to protest (Articles 9, 10, and 11 of the ECHR). The AG contended that the unqualified criminal offence, offering no scope for any defence of lawful or reasonable excuse, did not satisfy a proportionality requirement. The Supreme Court (UKSC) disagreed. It concluded that the satisfaction of the elements of the general legal prohibition could achieve the appropriate balance and be compatible with the Convention without the need for a defence or a separate proportionality assessment. 

Whilst the triumph for abortion rights in NI is welcome, the judgment does nonetheless raise broader concerns about the right to protest becoming depleted. The right to protest is considered a cornerstone of democracy, yet its exercise has been under legislative attack, making the test of proportionality particularly significant within this political backdrop. The Police, Crime, Sentencing and Courts Act 2022 weakened the right by giving police extensive powers to restrict protests on the ground that these amount to “serious disruption”. Further, the Public Order Bill, currently awaiting 3rd reading in the House of Lords, would give the police “carte blanche [powers] to target protesters” and create new offences which would place further restrictions on the form of protest. The UKSC’s conclusion in SAZ that proportionality is not a question of fact which requires the consideration of Convention rights in relation to every individual case, but instead can be determined more generally, has elevated concerns that this weakens fundamental rights protection in the UK. The diminishing of the right to protest could have devastating consequences for safeguarding rights and the ability to advance important political goals in a liberal democracy. Suppose the tables were to turn in the future, and the right to abortion was to be legally limited, the feminist movement celebrating the SAZ judgment could find itself restricted in protesting the legal change. The outcome in SAZ may therefore prove a trojan horse, and the approach to proportionality adopted may endanger protection of fundamental rights more broadly. 

Before examining the question of proportionality, it is important to give recognition to the significant win for women’s rights resulting from the UKSC decision. 

A triumph for abortion rights

The right to abortion in NI has been historically fraught. Until 2020, women could only seek a lawful abortion if pregnancy would risk the woman’s life or result in serious long-term or permanent injury to their physical or mental health. In 2018, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) recognised this restrictive abortion regime was causing grave and systematic violations of women’s rights. The Committee recommended expanding the ground for lawful abortion and protecting “women from harassment by anti-abortion protestors” [Recommendation B at para 86]. Outside of the abortion clinics, protesters would display graphic posters of disfigured fetuses, force baby dolls into the arms of persons’ leaving the clinics, film individuals approaching the clinic, give out inaccurate and emotionally charged anti-abortion literature, chase women leaving the facilities and pleading with them ‘not to murder their babies’ [SAZ at paras 80-87]. The staff working at the clinic also experienced harassment, including being spat at, verbally abused and having holy water splashed on them [para 92]. The CEDAW concluded that such conduct “rendered access to abortion in Northern Ireland virtually impossible” [CEDAW Committee at para 20]. The Bill acknowledged that the right to oppose abortion should not obstruct women’s exercise of autonomy and ability to make reproductive choices. As such, the safe access zones measure aimed to strengthen women’s rights to access healthcare with dignity, privacy and without fearing harassment. The limited abortion facilities and the persistent stigma of abortion in NI mean that women still experience barriers in terminating a pregnancy. This context makes it particularly pertinent to remove factors that would exacerbate societal ostracisation of women who undergo an abortion. This judgment is a significant win for pro-choice supporters and the feminist movement. It reaffirms that the decision to terminate a pregnancy should rest with the woman, and individuals should not be put under undue influence or have anti-abortion dogma forced upon them. 

Whilst this may appear as a basic recognition of the right to bodily autonomy, it should not be taken for granted. Since the Supreme Court of the United States rescinded the constitutional protection of the right to abortion in the US, leading individual states to pass highly restrictive laws or ban abortion altogether, it has emboldened the anti-abortion movement in Europe. The calls to further regulate and restrict abortion regained political traction, with new barriers being considered. For example, in September 2022, Hungary tightened its abortion access, requiring women to listen to a foetal heartbeat before being allowed to proceed with the termination. A similar requirement has been enacted in the Spanish region of Castilla y Leon, just north of Madrid. The divide between conservative and liberal values is intensifying across Europe and restricting women’s reproductive choices is reappearing on the political agenda, in a similar way to the use of abortion as a political bargaining chip in the US. This ripple effect from across the Atlantic has also been exhibited in the UK through the intensified efforts of anti-abortion protests outside of clinics, with many providers calling for a safe zone where the users and the staff can enter and leave without interacting directly with the protesters. The SAZ judgment rightly strengthens the position that women should have “a reasonable expectation of being able to access” abortion “with no great incursion upon their privacy”. Women should be allowed to exercise this right “without having their autonomy challenged and diminished” by protestors, whether by attempting to change their minds, or by passively “praying for the souls of foetuses with the intention or effect of provoking feelings of guilt, or by other means calculated to undermine their resolve.” [SAZ at para 126] 

What about the right to protest?

Whilst the UKSC was right to uphold the provisions of the Bill, the proportionality test adopted in the judgment has elevated anxieties over the weakening of the right to protest in the UK. Beyond situations necessary for the protection of women’s access to healthcare, the SAZ judgment addressed the legal question of whether proportionality assessment needs to be considered in each individual case concerning interference with Convention rights or whether an essence of the offence can be viewed as satisfying the balance required. In outlining the appropriate approach, the judgment focused on two key legal authorities: a previous UKSC judgment in Zieglar and the Divisional Court (England and Wales)’s judgment in Cuciurean. The two cases pointed in opposing directions: in Zieglar, the UKSC suggested that proportionality is a fact-specific enquiry, whereas, in Cuciurean, it was considered a question of law. In the judgment of SAZ, the UKSC was required to clarify the position and confirm the requirement of the proportionality assessment.

Proportionality: factual or a legal question?

In Zieglar, the defendants were charged with obstructing the highway without lawful authority or excuse. The UKSC considered whether deliberate physical obstruction of the highway that prevented other users from passing along could be lawful where the activity in question took the form of a protest or demonstration. In this case, it was decided that the determination of “the proportionality of an interference with the ECHR rights is a fact-specific enquiry which requires the evaluation of the circumstances in the individual case” [para 59; cited at para 28 in SAZ]. However, the UKSC in SAZ rejected the fact-dependent approach as the universal rule, and instead, considered it specific to offences under 137(1) of the Highways Act 1980. It then relied upon the reasoning in Cuciurean, where the Divisional Court held that the offence of aggravated trespass constituted a justified interference with the Convention rights without a need for a separate proportionality assessment. Once the ingredients of the offence were proven, nothing more was necessary for the conviction. The UKSC showed a preference for the approach of the Divisional Court and contended that the question of proportionality was “often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case” [SAZ at para 29]. To further support this approach, the UKSC referred to a judgment of the Grand Chamber of the European Court of Human Rights (‘ECtHR’ or ‘the Court’) in the case of Animal Defenders, where it stated that a “general measure has been found to be a more feasible means of achieving the legitimate aim than a provision allowing a case-by-case examination … the more convincing the general justifications for the general measure are, the less importance the Court will attach to its impact in the particular case” [paras 108-9, cited at para 35 in SAZ]. Consequently, following SAZ, the legislative measure can satisfy the proportionality requirement under the Convention without the need to evaluate individual case-specific facts. 

A distinction in criminal proceedings?

A human rights charity, JUSTICE, intervening in this case, argued that the approach to proportionality as a question of law, as taken by the UKSC here, should not apply to criminal proceedings. The submission referred to another GC judgment of the ECtHR in the case of Perincek v Switzerland, where the Court stated that “interference with the right to freedom of expression that takes the form of a criminal conviction inevitably requires detailed judicial assessment of the specific conduct sought to be punished” [para 275, cited at para 38 in SAZ]. Further, the ECtHR stated that “it is normally not sufficient” that the interference was imposed because of legal rules formulated in general terms. JUSTICE argued that where the penalty is more severe, such as in the case of a criminal conviction, there must always be an assessment of proportionality as a question of fact. Thus, this assessment must be carried out by the body responsible for determining whether the ingredients of the offence have been satisfied [SAZ at para 37]. 

The UKSC in SAZ rejected this argument. The judgment considered that the word “normally” in the above quote is significant and that the departure from the general guidance falls within the High Contracting Party’s margin of appreciation. The UKSC drew attention to the absolute restriction of freedom of expression in Perincek, as opposed to the limited restriction imposed by the Northern Ireland Bill on the place of its expression, which did not constitute equally severe interference. Equally, the UKSC distinguished the penalty, which in the case of Perincek was potential imprisonment, whereas, under the Bill, the punishment constituted a fine. It was not considered that the approach advocated in the judgment was incompatible with the ECHR, because the UKSC emphasised that the ECtHR assesses whether the rights are protected effectively, with the Court therefore concerned “with matters of substance rather than form” [SAZ at para 41]. Lord Reed, in his judgment, emphasised that distinguishing between civil and criminal proceedings in how Convention rights are applied would be artificial and inconsistent [SAZ at para 41]. Some civil penalties may be more serious than criminal penalties, as under the Bill. Imposing a considerable civil penalty for a restricted form of protest could have an equally chilling effect and therefore interfere with the ECHR rights.

Has the right to protest been weakened?

Not necessarily. The approach adopted in the judgment of SAZ can still guarantee effective protection of Convention rights. As best demonstrated by the Bill itself, the absence of a ‘reasonable or lawful defence’ can be proportionate. The possibility of including such a defence was considered when the Northern Irish Bill was drafted, and it was supposed that this would significantly weaken the effectiveness of the provision and make the measures less enforceable in practice [SAZ at para 101]. The offence’s unqualified nature was viewed as necessary for protecting reproductive choices, and in such circumstances, it can be justified. Likewise, the distinction between criminal and civil penalties would not necessarily guarantee greater protection. As Lord Reed mentioned, civil penalties such as injunctions can be enforced by proceedings for contempt, “in which unlimited fines or sentences of imprisonment can be imposed” [SAZ at para 41]. The requirement to undertake individual proportionality assessment may also undermine the effectiveness of the measure, as in the present example. If each fine could be challenged and lead to a dispute in court it would place a heavy burden on the resources of the courts when in reality, regardless of the individual circumstances of each defendant, any restriction on protests within the safe zones would be deemed justified and proportionate. The balancing exercise was effectively and meaningfully undertaken when drafting the Bill, and less restrictive means of achieving the aim were considered but concluded to be ineffective. It is the essence of the interference, and its necessity, that is of significance.

For effective protection of Convention rights, the domestic courts need to be willing to review the essence of the offence to determine whether the restriction of fundamental rights is necessary and whether the least intrusive means have been adopted. Undue deference must not be paid to legal measures where fundamental rights are limited. The second paragraph of Articles 10 and 11 of the ECHR lists the reasons for which the rights can be limited. The more extensive the interference or, the more severe the penalty, the greater the justification needed. In the case of the right to protest, it should not be sufficient that it causes annoyance or disruption; after all, the very nature of protests is disruptive. The restriction of such an essential right, especially given its political significance, should only be viewed as necessary to protect the rights of others, in the interest of national security or to prevent disorder or crime. 

The vast powers being introduced by the UK government enabling the curbing of protests will therefore need to be considered by the courts to determine whether they are compatible with the ECHR. Whilst the ECtHR does not necessarily require individual proportionality assessment, in the absence of such review “both at the legislative level and on the facts of the applicant’s individual case” [Chocholac v. Slovakia, para 74], the Court may find a violation based on the failure to strike “a fair balance” between the individual’s right and the general public interest [Chocholac at para 77]. The ECtHR reaffirmed that it was not sufficient for the domestic courts to rely on “the notion of rational lawmakers” to presume that the assessment was correctly carried out at the legislative stage [Chocholac at para 74]. Instead, the domestic courts must remain vigilant to the balancing exercise undertaken to determine whether the reasons provided justify the interference with the Convention rights. 

Cases involving rights conflicts are particularly complex, and striking the intricate balance to prevent a disproportionate restriction of one right over the other is not easy. The victim-centred test outlined by Judge Serghides in Rashkin v. Russia can offer some clarity. The detailed exploration of this approach cannot be covered in this post, but in essence, the test is guided by which “victim’s” rights sustain more damage. In the present case of SAZ, the right to protest was restricted in relation to the locations where an individual can express anti-abortion views. In comparison, the sorts of harassment detailed above inhibited the clinic users’ well-being, leading some women to obtain drugs via the internet rather than face the protestors [SAZ at para 85]. Clearly, the core of women’s rights was endangered by such continued exercise of the right to protest, and the aim of protecting the users could only be achieved by introducing a protest-free safe zone. 

The balancing exercise focused on achieving the best equilibrium between two conflicting rights should be utilised by the domestic courts to ensure that legislation passed by the government does not disproportionally interfere with one fundamental right, even in the name of protecting another. In short, so long as courts remain watchful guardians of fundamental rights, the lack of individual proportionality assessment should not leave ECHR rights unprotected.

Karolina Szopa, Lecturer in Law at Bournemouth University, PhD candidate, University of Reading and University of Bristol. Karolina’s PhD is funded by the South, West and Wales Doctoral Training Partnership.

(Suggested citation: K. Szopa, ‘Triumph for Abortion Rights, or a Trojan Horse? The Abortion Services (Safe Access Zones) (Northern Ireland) Bill and Proportionality Assessment’, U.K. Const. L. Blog (13th February 2023) (available at https://ukconstitutionallaw.org/))