Dublin, 8 January 2019

The Irish Council for Civil Liberties (ICCL) today welcomed the announcement by Minister for Health Simon Harris that he intends to legislate for safe zones around abortion provision centres and called for him to move to enact such legislation immediately.

Speaking today, ICCL Executive Director Liam Herrick said:

“ICCL attaches great importance to the right to peaceful protest. However, the right to protest is not absolute and does not include a right to intimidate, harass or prevent women from accessing health care, including abortion services. Recent protests at health clinics appear to have been targetting women with the intention of deterring them from accessing health services.

The Irish government is obliged by international treaties to which we are party, as well as by our own Constitution, to protect the right to privacy. It is also obliged to protect access to healthcare and to ensure that healthcare professionals working in these settings have the right to work in a safe environment.”

Under human rights law, the right to protest may only be interfered with in specific circumstances, including in order to protect the rights and freedoms of others. Protecting the right to access healthcare and the right to privacy can be considered legitimate grounds for interfering with the right to protest, as long as the measures taken are necessary, proportionate and provided for by law.

Existing provisions in Irish law for responding to protestors using intimidation and harassment do not provide adequate protection for individuals seeking to access abortion services because they rely on the discretionary use of powers by Gardaí.

Mr. Herrick continued:

“Where there is evidence of a pattern of orchestrated and organised interference with individual rights, such as the right to access healthcare, general measures to protect individual patients and healthcare workers may be necessary. The creation of exclusion zones that prohibit such behaviour within a specified area around healthcare premises would help to fulfil individuals’ right to privacy and right to access healthcare. ICCL looks forward to the publication of legislation in this area, and we will examine it carefully to ensure that any proposal provides a proportionate balancing of rights.”

The use of such exclusion zones has been found in other jurisdictions to constitute a proportionate and necessary interference with the right to protest. Máiréad Enright of Lawyers for Choice has provided a detailed analysis of the legality of exclusion zones and how they might be provided for in Irish law here: https://lawyers4choice.ie/2019/01/05/a-note-on-exclusion-zones-rogue-crisis-pregnancy-agencies-possibilities-for-reform/

ENDS/

Notes for editors:

The right to protest plays a crucial role in democracy and can be a significant driver of positive social change. The right derives chiefly from the right to freedom of assembly and the right to freedom of expression. It involves the exercise of a range of other rights including the right to take part in the conduct of public affairs, the right to freedom of thought, conscience and religion and the right to participation in cultural life. As such, the right to protest attracts significant legal protection under the Irish Constitution, the European Convention on Human Rights (EHCR) and the International Covenant on Civil and Political Rights, (ICCPR), to which Ireland is a State Party.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) requires States Parties (which includes Ireland) to fully realize the right to health. Access to health services forms one of the pillars of the right to health. The UN Treaty Body charged with interpreting the ICESCR has held that “health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups”. The government is therefore required to prevent third parties from hindering access to healthcare.

The right to privacy and confidentiality is one of the personal rights protected by the Irish Constitution, and is explicitly protected under the ECHR and the ICCPR. The government must ensure that third parties do not interfere with the right to privacy of individuals when accessing health care services.

Under existing Irish law, protestors who are considered to be breaching the public peace without lawful authority or reasonable excuse or to be causing harassment, alarm or distress may be restricted. The Criminal Justice (Public Order) Act 1994 gives the Gardai a broad power to ‘move on’ individuals when there is reasonable concern for the maintenance of the public peace. A person commits an offence if he or she, without lawful authority or reasonable excuse, willfully prevents or interrupts the free passage of any person in any public place. The Gardai can also potentially use powers under The Criminal Justice Act 2006 to issue a behaviour warning in response to behaviour which causes or is likely to cause harassment, significant or persistent alarm, distress, fear or intimidation. The fact that the Act applies to behaviour “likely to” cause alarm etc. means that there need not be an actual victim.

For media queries:

Sinéad Nolan: sinead.nolan@iccl.ie 087 4157162