Seven Supreme Court justices are considering whether proposed legislation might be a disproportionate interference with the rights of people who want to protest outside abortion clinics in Northern Ireland.
Dame Brenda King, the Attorney General for Northern Ireland, has asked justices to consider a clause in the Abortion Services (Safe Access Zones) Bill.
She says the clause does not provide for a “defence of reasonable excuse” and wants justices to consider whether it is a “proportionate interference” with the rights of “those who wish to express opposition to abortion services in Northern Ireland”.
Her office announced the move in a statement earlier this year.
“The Attorney has asked 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,” the statement said.
“This is a legal issue distinct from any contentious policy question as to the provision of abortion services in Northern Ireland.
“If Clause 5(2)(a) is determined by the court to be within the competence of the Assembly, the Bill may proceed to become law.”
Lord Reed, Lord Kitchin, Lord Burrows, Lady Rose, Lord Lloyd–Jones, Lord Carloway, Dame Siobhan Keegan are considering arguments at an online hearing due to end on Wednesday.
The Supreme Court building in central London has been closed to visitors because of the heat and an air conditioning fault; a sign posted at the entrance explains the problem.
A spokeswoman said hearings are being staged online and visitors can watch proceedings on the Supreme Court website.
An explanatory note about the case, posted on the court’s website, said the 1998 Northern Ireland Act permitted an Attorney General for Northern Ireland to ask the Supreme Court to determine whether a provision of a Bill would be within the Northern Ireland Assembly’s “legislative competence”.
“This reference concerns the Abortion Services (Safe Access Zones) (Northern Ireland) Bill,” said the note.
“The Bill makes provision for the establishment of safe access zones around abortion clinics and other premises which provide sexual and reproductive health services, in order to protect the people who use and work in those premises.
“Clause 5 of the Bill criminalises certain behaviour in a safe access zone.
“Under clause 5(2)(a), 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.”
The note said justices were asked to decide whether clause 5(2)(a) of the Bill was “outside the Northern Ireland Assembly’s legislative competence” because it disproportionately interfered with human rights, such as the right to freedom of thought, freedom of expression and freedom of assembly.
Human rights charity Justice is intervening in the case.
The organisation outlined its position in a statement issued before the hearing.
A spokeswoman said the case concerned a Bill, passed by the Assembly of Northern Ireland in March, providing for measures which allowed for the designation and enforcement of “safe access zones” around abortion clinics in Northern Ireland.
“One of the Bill’s clauses makes it an offence for a person to act in a designated safe access zone ‘with the intent’ of, or ‘reckless as to whether’ their act has the effect of ‘influencing’, ‘directly or indirectly’ a person attending a designated abortion clinic, their accompaniers, or people working at the premises,” said the spokeswoman in the statement.
“The Attorney General for Northern Ireland has asked the Supreme Court to consider whether this constitutes a proportionate interference with rights to freedom of conscience, expression, and assembly in Northern Ireland, as protected under .. the European Convention on Human Rights, because the clause does not include a ‘reasonable excuse’ defence.”
She said Justice argued that the lack of an express ‘reasonable excuse’ defence did not make the Bill incompatible with the convention.
The spokeswoman said Justice “unequivocally supports reproductive rights”, the ability to “access abortion healthcare services privately, safely and with dignity”, and the establishment of safe zones as an “important tool to protect those rights”.
She said that view was “especially important” at a time where “such rights are subject to threat – not least in the United States of America, following the overturning of the case of Roe v Wade”.