Relevant documents: 17th Report from the Delegated Powers Committee, 1st Report from the Joint Committee on Human Rights, 7th Report from the Constitution Committee
Clause 9: Offence of interference with access to or provision of abortion services
80: Clause 9, page 10, line 28, after first “who” insert “, without reasonable excuse,”
Member's explanatory statement
This amendment provides for a defence where the person has a reasonable excuse for being within a buffer zone and has access to that defence prior to charge.
My Lords, I shall speak to a range of amendments associated with Clause 9: Amendments 80, 81, 82, 83, 86, 89, 92 and 94. I have also put my name to Amendments 88 and 90 in the name of the noble Lord, Lord Beith, and have some sympathy with Amendments 98 and 99 in the names of the noble Lord, Lord Farmer, and the right reverend Prelate the Bishop of St Albans.
Clause 9 creates a new criminal offence of interfering with
“any person’s decision to access, provide or facilitate the provision of abortion services”
in a designated buffer zone. The most contentious aspects of the clause centre on the definition of “interfering with”, which criminalises a wide range of activities usually associated with free speech and the right to assemble.
However, Clause 9 also makes any gathering outside an abortion clinic or a hospital providing abortions the subject of criminal law. Currently, where there have been problems outside a building facilitating abortion services, the mechanism for dealing with them has been locally decided and designed through public space protection orders—PSPOs. Police and local authorities have the ability to set up zones in response to complaints over gatherings around specific abortion providing facilities. Clause 9, in contrast, introduces a catch-all blanket ban across all service providers, regardless of whether there are problem protest activities taking place. This seems to me to be totally disproportionate.
Although I am no fan of PSPOs per se—councils carving ever more public space away from public use is not a positive trend—none the less, the aim of my Amendments 88, 89 and 90 is to repose the solution in relation to abortion protests as localised PSPOs based on consultation and reviewed annually, so as not to normalise prohibitions.
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If we pass Clause 9, why will other institutions not demand buffer zones around their special case facilities? If we consider that in Clause 9 a buffer zone is defined very broadly as
“150 metres from … any access point to any building or site that contains an abortion clinic”,
does that not make protests of all sorts at hospitals potentially unlawful? What if you wanted to organise a vigil outside a hospital in which, for example, babies died due to negligence, such as in the maternity services scandal recently? What about a rally against the use of puberty blockers on teenagers? Would that be banned too? Note that when Labour introduced an amendment to the Police, Crime, Sentencing and Courts Bill for fast-track PSPOs to be used against gatherings in the vicinity of vaccination centres, it also made a special case and extended the precedence for another medical procedure to be protected from protest—a veritable slippery slope.
To those who say that the slippery slope argument is scaremongering, we were reminded in Liberty’s briefing for this Bill that protest banning orders were based, practically word for word, on football banning orders. I remember speaking against football banning orders and warning then that they set a precedent. I was told, “Oh, no; they are aimed at football hooligans only”. Well, guess what?
To conclude, I am very conscious that this clause was voted in with 297 votes for and 110 against in the other place and was supported by MPs across all parties, and I am always concerned about the democratic dilemma of unelected Lords challenging what happens in the other place. But these are probing amendments to at least ask to strengthen the burden of proof required to establish offences, to limit the range of acts potentially criminalised, to bring some proportionality to sentencing and to try to limit the illiberal, if unintended, consequences of what is undoubtedly a well-intentioned clause. I hope that when the Bill returns to the Commons, we at least give it a chance to think again.
I finish with Liberty’s comments in 2020, which I think are apt:
“Interference with protest rights should also be kept to a minimum. Liberty’s view is that legislation should only go as far as necessary to enable people to access abortion services safely.”
That is exactly right. The problem with Clause 9 is that it is redundant on this basis because safe access to abortion services is not threatened by people gathering outside.
My Lords, Amendment 80A is in my name. I will also speak to the other amendments in this group. I welcome the Government’s commitment at Second Reading to introduce zones around all clinics in England and Wales to ensure that women are able to access their legal right to abortion without harassment or intimidation. As the noble Baroness, Lady Fox, said, this clause was added in the other place by a majority of Members across seven political parties.
This clause will protect the women who have made the decision to have an abortion and now wish to access the service in peace and privacy without somebody trying to tell them to rethink what is often a very painful, personal and difficult decision. My amendments are supported by the noble Baronesses, Lady Barker and Lady Watkins, and by the noble Lord, Lord Ponsonby. They have been tabled in response to the debate at Second Reading to provide clarity around the description of these zones and to tighten the definition of what constitutes interference.
Amendments 80A, 82A and 82B would change the term used in this clause from “buffer” zones to “safe access” zones. This terminology better reflects the purpose of the zones—to ensure that women can safely access care. It would also bring the description of the zones into line with that used in the law in Northern Ireland and in the proposals in Scotland, as well as around the world, including in Australia and Canada. Amendment 84 would clarify the intent behind the drafting so that sites such as multiple-use buildings and hospital grounds which contain an abortion clinic are also included in these zones.
Amendments 87 and 93 would tighten the description of banned activities, so that they very clearly apply only to people interfering with abortion services and not to any other protests, such as some of those referred to by the noble Baroness, Lady Fox. Following concerns raised at Second Reading about the breadth of these banned activities, Amendment 91 would remove “or otherwise expresses opinion” from the list.
My Lords, I will speak to Amendments 98 and 99, to which my noble friend Lady Sugg just referred. We need to stand back. Our constitutional responsibility in this House is to scrutinise, amend and, where necessary, push back on legislation that is unwise or uncompliant. We have particular leeway to do this about an issue not included in the Government’s election manifesto.
Clause 9, which makes it an offence to interfere with
“any person’s decision to access, provide, or facilitate the provision of abortion services”
is fundamentally flawed and should never have been added to the Bill. It is quite simply not about public order. It chillingly polices access to the idea contrary to pro-abortion orthodoxy that there are other ways to approach this most difficult of decisions.
Those pushing the clause took advantage of parliamentary maelstrom at a time referred to, to me, by one very seasoned, senior MP in the other place as “discombobulating daily turmoil”. The imposition of nationwide buffer zones would have been whipped against when it came up previously in the passage of the Police, Crime, Sentencing and Courts Bill. However, this time the whipping confusion was exploited and it was made the subject of a conscience vote—the first in relation to public order in 203 conscience votes since 1979.
We need to be clear-eyed about the significant majority for this new clause, which was accepted in the other place. Many MPs spoke and then acted on their unwillingness to let women seeking health services be harassed and intimidated, but the very many abstentions indicate that this was not straightforward. The law already protects women’s rights to access abortion facilities without hindrance, harassment and intimidation.
More fundamentally, the inaccurate assumption that harassment and intimidation are the hallmarks of vigils undermines the arithmetic of the other end. Hence my Amendment 98 calls for a review of current law and practice outside abortion clinics before making a major incursion into civil liberties. The 2018 Home Office review, which we have heard much about, found that people on vigils, not protests, are typically there to offer information and support, including but not exclusively if women want to continue with their pregnancy.
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Because Clause 9 focuses on the issue of abortion, which we know is an emotional and morally challenging issue, it is worth taking a step back. The Government’s reason for bringing forward the Bill overall is to deal with the new protest tactics of Extinction Rebellion and its offshoots. Many of us have noted in previous debates that we do not support these anti-social tactics and some of us have even been clear that we have no sympathy with the nihilistic, catastrophising philosophy behind the eco-guerrilla warfare that activists have been waging against the British public.
Despite that, there have been widespread concerns across the House querying whether these new laws are necessary or proportionate, and noting that we already have laws on the statute book to deal with aggravated disruption, even if these laws are not being used effectively by the police, which is a different problem. There has also been widespread unease, which your Lordships have illustrated in myriad ways, about how various clauses in the Bill might have unintended draconian consequences for the general right to protest, far beyond Just Stop Oil activists or our attitudes to them.
For me, the same concerns are absolutely true of Clause 9. However, the difference is that many opposing the Government on the rest of the Bill are supportive of this clause. Seemingly, this is because noble Lords want to be unconditionally supportive of every woman’s right to access abortion facilities without hassle or hostility. As a passionate advocate of women’s reproductive rights and bodily autonomy, I am very sympathetic to this view. However, this is not the key prism that should inform our approach to Clause 9. I urge your Lordships to scrutinise Clause 9 with similar dispassionate and impartial eyes as have assessed the rest of the Bill in relation to Just Stop Oil—that is, beyond our attitudes to abortion.
Stella Creasy, the MP who effectively authored this clause, was quite right when she said in the other place that this new clause is not about the abortion debate. However, she argues that it is about ensuring safe access to abortion healthcare, and this is where the dispute starts. All the evidence indicates that the activity happening outside clinics, while undoubtedly unsavoury, does not threaten safe access. What is more, if there are any instances of women’s safe access being obstructed, which is totally unacceptable, many pieces of legislation already exist to protect women if they face intimidation or harassment, as Home Office Minister Kit Malthouse pointed out in the Public Bill Committee debate in June. For example, the Public Order Act 1986 prohibits causing harassment, alarm or distress, and includes a specific power to impose conditions on assemblies that seek to intimidate others not to do an act they have a right to do.
As with other parts of the Bill, the police have the powers to target specific instances of behaviour or activity if they constitute blocking safe access to abortion facilities. In 2018, the then Home Secretary, after concluding an in-depth review of the abortion clinic buffer zones, stated that he was
“adamant that where a crime is committed, the police have the powers to act so that people feel protected.”—[Official Report, Commons, 13/9/18; cols. 37-38WS.]
Given the importance of the rights at stake here, it seems particularly important that the police use their resources and their existing powers appropriately, to protect staff at abortion facilities and service users alike —but for that to happen, none of this requires Clause 9.
Do not get me wrong; I have very little sympathy for those who think that it is appropriate to gather outside abortion clinics. It is wholly unpleasant to target any individual woman going into hospital to access a legal termination. Waving gruesome images of dismembered foetuses, following women and medical staff doing their jobs, calling out, “your baby loves you” or “murderers”, hanging clothes around clinic entrances—this is crass insensitivity rather than compassion.
However, to be balanced, pro-life activists who attend these vigils will dispute these anecdotes and claim to be simply offering crisis pregnancy support, giving women choices by offering help financially, in raising a child, et cetera. There are, I concede, two competing narratives. I am conscious of the 2018 Home Office review, which found that those gatherings largely comprise passive activities such as prayers, leafleting, placards, singing hymns and so on. Regardless of which narrative you buy, it is wholly insensitive and intrusive to try to engage individual women at such a time, effectively demanding that they account for their personal moral decisions to strangers at a rally. I have no doubt that this would upset most women. It would upset me.
But whether it is upsetting is not what we should be talking about. The key question is whether it should be illegal and whether it constitutes a threat to safe access. My problem with Clause 9 is that it does not distinguish between activities causing actual objective harm and harassment, which threaten safe access, and activities with which we may disagree or which we might find disagreeable. Therefore, we must resist the temptation to create a law that criminalises otherwise legal activities based on a distaste for those activities. How the Bill defines “interferes with” will make an extraordinary range of activities in a particular area punishable by lengthy stints in prison or unlimited fines.
Some of the most egregious and censorious parts that my Amendments 88 to 90 seek to strike out are,
“seeks to influence … advises or persuades, attempts to advise or persuade or otherwise expresses opinion … informs or attempts to inform about abortion services by any means, including, without limitation, graphic, physical, verbal or written means”.
In other words, Clause 9 outlaws leafleting, holding placards, expressing opinions, persuading and informing. Some will say, “Don’t worry; this is only to be used in very specific instances of access to abortion, and it is only confined to designated areas”. But as Big Brother Watch points out, creating prohibitions on protest on an issue-by-issue basis is not an appropriate way to make law. It sets a precedent that will inevitably lead to attempts to prevent speech, expression, information sharing, assembly or the holding of protected beliefs around other sites or in relation to other controversial or unpopular causes.
Amendments 95, 96 and 97 would add exclusions to the safe access zones. Amendment 95 covers everybody attending a clinic with a service user with their consent. This is often a friend or a loved one—someone who anti-abortion literature sadly and inexplicably refers to as “an accomplice”. Amendment 96 would exempt any activities taking place,
“inside a dwelling where the person affected is also inside that or another dwelling.”
Amendment 97 would exempt activities taking place inside a church or other,
“place of worship where the person affected is also inside that”
place of worship. I hope that noble Lords and the Government will agree that, taken together, these amendments address many of the concerns raised at Second Reading and provide clarity and a tightening of the definitions in the clause.
I turn to other amendments in this group. I am afraid that I do not agree that there needs to be a “reasonable excuse” defence in the clause. This is about harassment and intimidation, not protest. I do not believe there is a reasonable excuse for the harassment or intimidation of women seeking to access their legal right to medical care. They are often in a vulnerable situation, having made a difficult decision—a decision which is theirs to take.
Amendments 81, 83 and 86 concern the universal application of the zones. Universality was debated in detail and agreed in the other place. It is a core requirement of this clause. Removing it would undermine its very point, which is about protecting women before harm occurs.
A method already exists to apply for locally based public space protection orders, or PSPOs, but their nature means that evidence about impact has to be gathered locally and for a prolonged period. They require women to be subjected to abuse and intimidation for months—even years—before they can be introduced. They place a burden of proof on these women, who are in a vulnerable situation. They are expensive and complicated. The process also requires significant time and resources from providers and local councils, which often do not have resources to spare. This is why, despite regular protests at clinics across the country, we have so few PSPOs—only five, despite regular protests at more than 50 clinics. This creates a patchwork of protection, so that women across the country face a postcode lottery as to whether they will face harassment when they go to a clinic. Once a clinic is successful in getting a PSPO, groups simply move to another site and the whole process begins again.
The introduction of “intentionally or recklessly” by Amendment 82 would likely make it harder to implement and enforce the clause. It would increase the likelihood that this measure would not be adequate to deliver on its aim.
Amendments 88, 89 and 90 relate to the list of banned activities that the previous amendments in my name seek to clarify and narrow. They would leave intact the other essential aspects of advising and persuading. “Seeking to influence” is at the core of the amendment inserted by the House of Commons. It is needed to cover the activities we are seeing outside abortion clinics around the country. The list in Clause 9 is based on these reported activities and their impact, which many women accessing care at these clinics report as being the most distressing.
Finally, Amendments 98 and 99 would remove Clause 9 entirely and instead require the Home Office to undertake another review into activities around abortion clinics. A review would undermine the vote in the other place to support the immediate addition of Clause 9, disagreeing with the clearly settled will of elected Members. Another review would delay stopping the harassment of women around abortion clinics.
Since the last review four years ago, protests have evidentially increased. BPAS’s database of abortion clinic activity currently includes nearly 3,000 accounts of service users, those accompanying them and clinical staff. Half of those have been received since the Home Office’s last consultation closed, and this is in no way an exhaustive list. Understandably, only a small proportion of women affected are willing and able to share their experiences when asked.
Since the review, the number of hospitals and clinics in England and Wales that have been targeted has increased by 20%. Just today, an abortion clinic in Doncaster has reported having people outside for the first time in years. We have seen an increase in co-ordinated activities. Tactics have evolved, groups are actively recruiting and are very well funded, often by American groups emboldened by Roe v Wade, which are now looking to sow division on our shores. Largely American-funded campaign groups with deep pockets are opposing our local councils when they seek to bring legal orders to protect women from harassment.
It is not right that this influence impacts the right to access healthcare in this country. As the former Home Office Minister, Victoria Atkins, said in the other place, new, immediate law is needed because of the failure of existing legislation to address the problem. Some 100,000 women a year in England and Wales have to attend an abortion clinic that is targeted by anti-abortion groups, which cause harassment, alarm, and distress to these women. Some 50 sites have been targeted in the last three years. It is clear that the existing law is not enough and this piece of legislation is needed. We must safeguard a woman’s right to access healthcare.