[2025] EWHC 2751 (Admin)

Sir James Eadie submitted that each of the claims should be regarded as ab ante challenges to the legislation itself rather than to the application of the legislation to the facts of individual cases. It is said that the ab ante approach sets a high hurdle for a claimant to surmount. The defendant relied upon the principles laid down inter alia In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32; [2023] AC 505 at [13]-[19]. Lord Reed PSC stated at [14]:

“The rationale of that approach is that where there is an ab ante challenge to a legislative provision (that is to say, a challenge to the provision in advance of its application to any particular facts), the striking down of the provision is only justiciable if the court is satisfied that it is incapable of being applied in a way which is compatible with the Convention rights, whatever the facts may be. If the legislation is capable of being applied compatibly with the Convention, then it will survive an ab ante challenge.”

The claimants stoutly resisted the defendant’s contention.

The recent discussion in ALR of this subject at [99] – [108] suggests that the resolution of this issue in the present cases may not be straightforward. However, it is unnecessary for us to go further into the matter because even if it be assumed that the claimants are correct on the ab ante issue (an issue on which we would note the difference between the parties appeared to narrow significantly in the course of oral argument), we have reached the clear conclusion that they fail in relation to each of the incompatibility challenges to the measures in question, individually and cumulatively.