Seven Supreme Court justices are considering whether the proposed legislation could amount to a disproportionate interference with the rights of people who want to protest outside abortion clinics in Northern Ireland.
Dame Brenda King, the Attorney General of Northern Ireland, has asked judges to consider a clause in the Abortion Services (Safe Access Areas) Bill.
She says the clause does not provide for a ‘reasonable excuse defence’ and wants judges to consider whether it is a ‘proportionate interference’ with the rights of ‘those who wish to express their opposition to the services of abortion in Northern Ireland”.
His office announced the decision in a statement earlier this year.
“The prosecutor asked the Supreme Court to consider whether the offense created by clause 5(2)(a) of the Abortion Services (Safe Access Areas) Bill, which does not provide for defense of reasonable excuse, is a proportionate interference with the rights of those who wish to express their opposition to abortion services in Northern Ireland,” the statement read.
“This is a separate legal issue from any contentious political issue regarding the provision of abortion services in Northern Ireland.
“If paragraph 5(2)(a) is determined by the court to be within the jurisdiction of the Assembly, the bill may become law.”
Lord Reed, Lord Kitchin, Lord Burrows, Lady Rose, Lord Lloyd-Jones, Lord Carloway and Dame Siobhan Keegan are considering arguments during an online hearing due to end on Wednesday.
The Supreme Court building in central London was closed to visitors due to heat and a fault in the air conditioning; a sign posted at the entrance explains the problem.
A spokeswoman said the hearings were being held online and visitors could watch the proceedings on the Supreme Court’s website.
An explanatory note to the case, posted on the court’s website, said the Northern Ireland Act 1998 allowed an Attorney General of Northern Ireland to ask the Supreme Court to consider whether a provision of a bill would fall within the “legislative jurisdiction” of the Northern Ireland Assembly. .
“This reference is to the Abortion Services (Safe Access Areas) (Northern Ireland) Bill,” the memo said.
“The bill provides for the creation of safe access zones around abortion clinics and other premises that provide sexual and reproductive health services, in order to protect those who use and work in these premises.
“Section 5 of the bill criminalizes certain behaviors in a secure access area.
“Under paragraph 5(2)(a), it is an offense who intentionally or recklessly does anything in a safe access area that has the effect of influencing a person attending an abortion clinic or other protected locations for protected purposes.
“There is no defense for those who act with a reasonable excuse.”
The memo says judges were asked to decide whether clause 5(2)(a) of the bill was “outside the legislative competence of the Northern Ireland Assembly” because it interfered disproportionately with human rights, such as the right to freedom of thought, freedom of expression and freedom of assembly.
Justice, a human rights charity, is intervening in the case.
The organization set out its position in a statement released ahead of the hearing.
A spokeswoman said the case relates to a bill, passed by the Northern Ireland Assembly in March, providing for measures to allow the designation and enforcement of ‘safe access zones’ around clinics abortion in Northern Ireland.
“One of the clauses of the bill makes it an offense for a person to act in a designated secure access area ‘with the intent’ or ‘reckless as to whether’ their act has the purpose of effect of “influencing”, “directly or indirectly” a person attending a designated abortion clinic, their attendants or persons working on the premises,” the spokeswoman said in the statement.
“The Attorney General of Northern Ireland has asked the Supreme Court to consider whether this constitutes a proportionate interference with the rights to freedom of conscience, expression and assembly in Northern Ireland, as protected by .. the European Convention on Human Rights, as the clause does not include a defense of “reasonable excuse”.
She said the justice argued that the lack of an express “reasonable excuse” defense did not make the bill inconsistent with the convention.
The spokeswoman said Justice “unequivocally supports reproductive rights”, the ability “to access abortion-related healthcare services privately, safely and with dignity”, and the creation of safe areas as “an important tool to protect these rights”.
She said that view was “particularly important” at a time when “those rights are under threat – notably in the United States of America, following the overturning of the Roe v. Wade case.”