Demonstrations outside Abortion Clinics – Proportionality of Fixed Buffer Zone Legislation

Photo of a person holding a megaphone

This post was first published on 15/07/2022.

Author: Emily Ottley

On 24 March 2022, a Bill that would allow a fixed buffer zone to be implemented upon the request of an abortion clinic in Northern Ireland was passed by the Northern Ireland Assembly (the Abortion Services (Safe Access Zones) Bill). The Bill would make it a criminal offence to do an act within 100 metres of the abortion clinic with the intention of or being reckless as to the possibility of: (a) directly or indirectly influencing a protected person; (b) preventing or impeding a protected person from accessing the clinic; or (c) causing harassment, alarm, or distress to a protected person. The Bill defines ‘protected persons’ as clinic-users, clinic staff, and anyone accompanying clinic-users to the clinic.

However, the Bill has been delayed from becoming law because the Attorney General for Northern Ireland has referred it to the UK Supreme Court to consider whether the offence is ‘a proportionate interference with the rights of those who wish to express opposition to abortion services in Northern Ireland’, afforded to them by the European Convention on Human Rights (ECHR). If the offence is not proportionate, the provision will be incompatible with the ECHR and fall outside the legislative competence of the Northern Ireland Assembly (by virtue of section 6 of the Northern Ireland Act 1998). The Attorney General is able to bypass the lower courts and go straight to the UK Supreme Court with this question due to a process established in section 11 of the Northern Ireland Act 1998. We await the hearing and the decision of the UK Supreme Court.

The proportionality of the interference caused by fixed buffer zone legislation is something I have written about in a recent publication in the Medical Law Review. In order to assess the proportionality of the interference, I consider two relationships. First, the relationship between the aims of the measures and the means to achieve those aims. The means includes both the national aspect of the legislation and the nature of the prohibition (as defined by the legislation). With regard to the national aspect of the legislation, I interrogate existing legislation to determine whether it could be used to restrict demonstrations outside abortion clinics. With respect to the nature of the prohibition, I examine the size of the buffer zone, the activities prohibited within the buffer zone, and the penalty for violating the prohibition. Second, the relationship between the competing interests of demonstrators opposing abortion and clinic-users seeking an abortion. Here I conduct a balancing exercise between the ECHR rights of clinic-users and demonstrators.

On the basis of three key findings, I conclude that national fixed buffer zone legislation can be proportionate. First, existing civil and criminal legislation is unable to deal with demonstrations satisfactorily so national legislation would be proportionate. Second, the nature of the prohibition would be proportionate, providing the legislation allowed for some flexibility regarding the size of the buffer zones and that the activities restricted and penalties specified are the same as those defined by the (unsuccessful) Demonstrations (Abortions Clinics) Bill and amendment to the Police, Crime, Sentencing and Courts Bill. Third, fixed buffer zone legislation would strike a fair balance between the rights of clinic-users and demonstrators because demonstrations may affect the health of clinic-users but not the health of demonstrators.

The article is open access and available to read here: Fixed Buffer Zone Legislation: A Proportionate Response to Demonstrations Outside Abortion Clinics in England and Wales?

Emily Ottely

Emily Ottley is a Lecturer in Law, University of Winchester. She is also studying for a PhD at King's College London.

Dickson Poon School of Law