Section 11(1) of the Northern Ireland Act 1998 permits the Attorney General for Northern Ireland to make a reference asking the Supreme Court to determine whether a provision of a Bill would be within the Northern Ireland Assembly’s legislative competence.
This reference concerns the Abortion Services (Safe Access Zones) (Northern Ireland) Bill. The Bill is primarily designed to protect the right of women to access abortion and associated sexual and reproductive health services. It therefore prohibits anti-abortion protests and other specified behaviour within “safe access zones” around abortion clinics and related premises.
                Under clause 5(2)(a), it is an offence to do anything, intentionally or recklessly, in a safe access zone which has the effect of influencing a person attending an abortion clinic or other protected premises for protected purposes. There is no defence for those who act with reasonable excuse.
Section 6(2)(c) of the Northern Ireland Act 1998 states that a provision of a Bill is outside the competence of the Northern Ireland Assembly if it is incompatible with the rights protected by the European Convention on Human Rights. These include the rights to freedom of thought, conscience and religion, freedom of expression and freedom of assembly and association protected by Articles 9, 10 and 11 of the Convention. The Supreme Court is asked to decide whether clause 5(2)(a) of the Bill is outside the Northern Ireland Assembly’s legislative competence because it disproportionately interferes with the Convention rights of those who seek to express their opposition to the provision of abortion treatment services in Northern Ireland.

The Scottish Parliament has the power to make laws for Scotland (section 28(1) of the Scotland Act 1998 (“SA”)). However, a provision of an Act of the Scottish Parliament is not law so far as the provision is outside the legislative competence of the Scottish Parliament (section 29(1) SA). A provision is outside legislative competence if it “relates to reserved matters” (section 29(2)(b) SA). Whether a provision “relates to” a reserved matter is determined “by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances” (section 29(3) SA). Reserved matters include both “the Union of the Kingdoms of Scotland and England” and “the Parliament of the United Kingdom” (paras 1(b) and (c) Schedule 5 SA, respectively).
The SA allows the Lord Advocate to “refer to the Supreme Court any devolution issue which is not the subject of proceedings” (para 34 of Schedule 6 SA). A “devolution issue” includes “any other question arising by virtue of this Act about reserved matters” (para 1(f) of Schedule 6 SA).
This reference concerns the proposed Scottish Independence Reference Bill. The Bill makes provision for a referendum on Scottish independence. The question would be “Should Scotland be an independent country?”. The key issue in this reference is whether the proposed provision relates to reserved matters.