What Scotland can learn from the Supreme Court ruling on Northern Ireland’s buffer zone law
April 30, 2024
With buffer zones legislation making its way through Holyrood, our Policy and Campaigns Officer Joe explores a recent court decision in Northern Ireland that could have significant implications for MSPs debating the new law in Scotland.
This week, MSPs debated and agreed to the general principles of Gillian Mackay’s Abortion Services (Safe Access Zones) Bill. If passed, the bill will introduce 200-metre buffer zones around healthcare facilities that provide abortions in Scotland. Any behaviour that seeks to impede, distress, or influence people entering an abortion clinic would be criminalised within the “safe access zones.”
There is clear evidence of the negative impact of anti-abortion protests. However, opponents continue to argue that safe access zones unlawfully restrict protesters’ rights to freedom of religion, expression, and assembly. A recent UK Supreme Court ruling on a similar law passed in Northern Ireland provides important clarity on this point.
Following the passage of the Abortion Services (Safe Access Zones) (Northern Ireland) Bill in 2022, the Attorney General asked the UK Supreme Court to determine whether the law was compatible with the European Convention on Human Rights (ECHR). The senior law officer was concerned that sections of the bill disproportionately interfered with protesters’ freedom of conscience, speech and assembly, protected under Articles 9, 10 and 11 of the ECHR.
In a unanimous decision issued later that year, the Supreme Court ruled that the legislation was fully compatible with anti-abortion protesters’ convention rights. Their detailed legal analysis looked at the provision of protest-free safe access zones and its interaction with ECHR rights. In reaching its conclusion, the Supreme Court judges highlighted a number of important points:
- Freedom of expression, assembly and the freedom to manifest one’s religion have always been qualified rights. Public authorities can legally restrict these freedoms where it is necessary and proportionate to protect health and the rights of other people.
- Abortion is legal as a result of democratic decision-making. Anti-choice activists cannot be given free and unfettered ability to harass individuals going about accessing their legal rights. Nor, in the case of medical professionals, can they attempt to prevent them carrying out legal duties.
- Women and pregnant people should reasonably expect to access a legal abortion without being confronted by protests “designed to challenge and diminish their autonomy and undermine their resolve.” This is their fundamental right under Article 8 of the ECHR. That article protects “access to healthcare in conditions of privacy and dignity, and the right to pursue employment.”
- Patients and staff are a ‘captive audience’ who have no choice but to witness these unwelcome and intrusive protests.
- Activists are free to protest anywhere else they please. The bill does not seek to stop anti-abortion protesters from exercising their Article 9, 10, or 11 rights. It simply has to occur outside of the designated safe access zones.
- The bill addresses a highly sensitive context that places the protection, privacy, and autonomy of women and pregnant people front and centre. In cases like this, governments have a wide degree of discretion to make policy changes where it is necessary to balance competing convention rights.
For all these reasons, the Supreme Court ruled that protecting access to abortion services without harassment is a legitimate aim. It can be achieved in a proportionate way through safe access zones.
We are calling on MSPs to listen to the UK Supreme Court and vote Gillian Mackay’s Bill into law. Patients and staff need protection from intimidating and inappropriate anti-choice protests now.
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Image: Abortion rights rally, Belfast, 2012. C. Wikimedia/Creative Commons.
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