Liam Gibson, blogpost

Freedom of assembly is not only necessary in a democratic society but legal restrictions on peaceful protests do a “disservice” to democracy. That was the conclusion of the European Court of Human Rights in a 2015 ruling cited by counsel for the Attorney General of Northern Ireland in a case before the Supreme Court in London, which began on Tuesday, 19 July.

Dr Tony McGleenan QC told a panel of seven judges that the Abortion Services (Safe Access Zones) (Northern Ireland) Bill could potentially violate the terms of the Human Rights Act and Article 11 of the European Convention on Human Rights.

Human rights requirements disregarded

At the centre of the case is section 5 (2)(a) of the Bill, which makes it an offence to do anything within the boundaries of a so-called “safe access zone” to influence – whether directly or indirectly – protected people such as women seeking an abortion, those accompanying them or employees of abortion facilities. The Attorney General didn’t have any issue with the provisions on harassment or threatening behaviour but, Dr McGleenan said, the Bill also seeks to create criminal liability for peaceful demonstrators based on “nebulous concepts” of influencing someone.

In detailed oral submissions, Dr McGleenan recounted how the Bill was rushed through Stormont just ahead of the Assembly elections last May. As a Private Member’s Bill, it was not subject to the level of scrutiny applied to Government Bills. There was no consideration of human rights requirements nor was there any attempt to balance the rights of “protected people” with those taking part in peaceful pro-life vigils.

An amendment to the Act that would have provided a legal defence of “reasonable excuse” against prosecution was rejected by the Assembly for party political reasons.

The role originally envisaged for the Department of Health in the implementation of buffer zones – setting their boundaries and duration – was also dropped during the legislative process. These questions will now be decided by the abortion providers themselves while health officials are merely required to approve requests and publicise where the buffer zones will operate. And unlike buffer zones imposed by local authorities in England, there is no space set aside for demonstrations and no requirement for periodic review.

The Attorney General, Dame Brenda King, referred the legislation to the Supreme Court for a decision on whether it would introduce a disproportionate restriction on the Article 11 right to demonstrate peacefully in a public space. Dr McGleenan argued that the Strasbourg court had consistently defended the rights of protestors even when their message was offensive or had caused disruption. Quoting the case of Kudrevičius vs Lithuania, he said:

“Any measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles do a disservice to democracy and often even endanger it.”

No distinction between peaceful vigils and harassment or threatening behaviour

Unfortunately, the Abortion Services (Safe Access Zones) (Northern Ireland) Bill makes no distinction between peaceful vigils and harassment or threatening behaviour – a point defended by the Northern Ireland Human Rights Commission and Dorothy Bain QC, the Scottish Lord Advocate, who had been granted leave to intervene. Both argued that there was no difference between demonstrations that were violent and aggressive and silent prayer. Ms Bain suggested that silent prayer can be even more psychologically damaging than noisy protests. They urged the Court to reject the Attorney General’s request for a ruling on Article 11 rights and instead allow the matter to be decided through criminal prosecutions.

Concluding his remarks on the second day of the hearing, Dr McGleenan insisted that a judgement from the Supreme Court now would avoid the prospect of a long succession of trials and legal challenges stretching into the future. And while uncertainty over the Bill could generate potentially unlawful convictions, it would also have a chilling effect. Fear of criminal prosecution would deter people from exercising their legitimate right to peaceful protest. He reminded the judges that the current abortion regime in Northern Ireland had been imposed by Westminster and a significant number of people remained opposed to it. It was important that this section of the population was allowed to express its opposition to abortion.

The Supreme Court is not expected to deliver its opinion before the Autumn, but whatever it decides, it will almost certainly have implications far beyond Northern Ireland.

Respond to the consultation on buffer zones 

During her submissions, Ms Bain repeatedly referred to the plan to introduce buffer zones in Scotland. A public consultation on this proposal is due to close on 5 August, and SPUC is urging its supporters to participate. A briefing to help those who wish to take part is available by clicking here.