41: Clause 9, page 10, line 37, leave out paragraph (d) and insert—
“(d) in any location that is visible from the curtilage of the abortion clinic.”Member's explanatory statement
This amendment seeks to protect the rights to privacy and private property, and endeavours to align Clause 9 with the limits of safe access zones legislation in other jurisdictions.
My Lords, I will speak to Amendments 41, 42 and 43 in my name. First, I apologise for any offence caused by my tabling those amendments without having been involved in Committee. I am afraid that I am still learning the ropes here, as it were, and I certainly did not intend any discourtesy. I hope that your Lordships can forgive me; I will certainly learn from my mistake. My motivation was, and still is, to offer your Lordships another way forward on the tricky Clause 9 which I hope might seem reasonable and sensible. It also has the advantage of having been tested and shown to be workable, both legally and practically, in another common-law jurisdiction. I thank my noble friend Lord Wolfson of Tredegar for his help with the finer points of the legal issues.
The amendments, collectively, take four points as given: first, that abortion, within certain parameters, is legal in England and Wales—whatever our individual views on abortion, that is not the issue up for debate today; secondly, that women who have decided to go ahead with an abortion should be able to avail themselves of the services without harassment or intimidation; thirdly, that there is a right to free speech; and, fourthly, given that abortion is a highly-charged topic, that it is appropriate to regulate space around clinics. The question is: how do we balance those four points? The amendments I have tabled seek to achieve balance in a way that I do not think is currently achieved by Clause 9 or, indeed, by Amendment 45, tabled by my noble friend Lady Sugg —someone I greatly admire and respect, but whose amendment gives me cause for some concern.
I will focus my remarks on my Amendment 42, which is at the centre of this matter. Amendment 42 is modelled on law adopted in 2015 in Victoria, Australia; it has been widely accepted and is working well. An Australian-style law has many benefits, especially when examined in contrast to Amendment 45. First, it ensures that women accessing abortions are free from intimidation, harassment or interference. It targets the worst forms of behaviour that protesters subject women to at abortion clinics. Yet it is reasonable in how it achieves those aims: it does not indiscriminately ban all peaceful and unintentionally intrusive activity.
My Lords, I shall speak to my Amendment 44, supported by the noble Baronesses, Lady Fox of Buckley and Lady Hoey. I found the speech from my noble friend Lady Morrissey very interesting, and I shall refer to it shortly.
Fundamentally, with regard to the current Clause 9, calling for a 150-metre buffer zone—or safe access zone, as I think it is now being called—it is not supported by the necessary evidence and research data to justify placing on the statute book such a law, which would be a substantial incursion into the freedom rights of the individual. My amendment is not about abortion or abortion clinics per se; it is about good law or bad law. We have heard much at Second Reading and in Committee about the 2018 Home Office review on this matter and its judgment word, “disproportionate.” At this time, we do not have the evidence that such a clause as it currently stands is a proportionate response to activities nationwide around abortion clinics. Therefore, we need a review, to establish the facts about what is going on and respond accordingly.
After all, again as has been mentioned previously, we do have laws, including PSPOs, which are available for dealing with egregious practices. Buffer zones can be imposed by local councils when deemed necessary, and Bournemouth, Birmingham and Ealing are examples. The only activity currently being reported by the media that I am aware of is the arrest of two women for praying, and the fining of a veteran who paid for his girlfriend to have an abortion 22 years ago, for the same reason—praying.
I disagree that the Supreme Court judgment on Northern Ireland justifies this law on our statute books, for three reasons. First, we have had abortion for over 55 years, whereas in Northern Ireland this option has been legally available for less than four years. Moreover, secondly, it was made so in circumstances which in themselves have provoked much anger. Finally, with respect to Northern Ireland, key to the Supreme Court’s reasoning was the evidence which the Northern Ireland Assembly considered before passing the legislation. Those resting their arguments on what has transpired there actually strengthen my argument that a review should come first before we even craft legislation here. Similarly, we are not the US and should not be making pre-emptive legal strikes in response to changes there without the evidence from our own jurisdiction—albeit that there has been a dramatic US response to the decision of its Supreme Court on Roe v Wade.
My Lords, I shall speak to Amendment 45, which I have co-signed, and to other amendments in this group.
The original Clause 9 was inserted in the Commons and is designed to bring in safe access zones around abortion clinics without delay and ensure that women can safely access their legal right to healthcare. We had extensive debates on the necessity for Clause 9 at earlier stages of the Bill. I will not repeat arguments and shall aim to be brief.
It is clear that revision was needed to Clause 9 as we received it from the Commons. The Government were not able to make a Section 19(1)(a) statement that the original clause was compliant with human rights, and noble Lords raised a number of other issues at earlier stages. I have co-signed Amendment 45, to be considered by your Lordships as an alternative to the existing Clause 9. This is a cross-party proposal based on debate and amendments at earlier stages, and is an alternative that I hope your Lordships will agree is an improved and now legally robust and compliant amendment, fulfilling our duty as a scrutinising, revising and improving House, while keeping the intent of this clause, as voted for by a Commons majority on a free vote. We have worked to ensure that this amendment is compatible with the Human Rights Act 1988 and we have been told that it does now meet the threshold for a Section 19(1)(a) statement. I would be grateful if my noble friend the Minister would confirm this from the Dispatch Box.
Amendment 45 also makes changes responding to other concerns raised by noble Lords at earlier stages. We have removed custodial sentences from the clause; private dwellings and places of worship have been exempted, as long as activity there is not designed to impact women outside that space trying to access healthcare; and we have included an exemption for those “accompanying, with consent”, to ensure that conversations that women wish to have will not be captured. The amended clause still contains the word “influence”, as referred to by my noble friend Lady Morrissey. It is a word in the original clause that was subject to some debate in Committee. This wording is also used in existing UK legislation for safe access zones in Northern Ireland, also referred to by my noble friend. That legislation was, indeed, upheld in December last year by the Supreme Court.
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Noble Lords understandably have very strongly held opinions about everything that we are discussing tonight. We may disagree on whether a woman should have the right to choose to have an abortion. I know, though, that we all care about free speech and the right of people to be able to express their views, whether we agree with them or not. We must also ensure that women can safely and freely access their legal right to health services. I hope your Lordships will agree that Amendment 45 is a considered and reasonable solution to the issues that have been raised and will support it when it is pressed to a vote later.
My Lords, I have viewed this issue from a civil liberties standpoint, and that left me rather alarmed at the wording of Clause 9 as it came to us from the House of Commons. It clearly indicated a willingness to extend our laws in ways we have never contemplated before, to the expression of opinion or to influencing people. I was profoundly unhappy with all that wording and not entirely convinced that the matter could not be dealt with using the existing law—as I remember from often quoted cases, it has been. It raised the worry in my mind of where else these principles could be applied—for example, to vaccination clinics if they were picketed by anti-vax people, or to scientific laboratories where animal experimentation is carried out and staff are very fearful of their names and addresses becoming known and of walking into work. These are dangerous things to import into our law but potentially attractive in a number of other situations.
After we tabled amendments in Committee, I met the Minister and Home Office civil servants. I am grateful for that meeting, as it really showed that work and effort was being put into trying to find a clause which was compliant with the ECHR, and which met the genuine concerns of those who brought it forward in the Commons. I am glad to say that the amendment in the name of the noble Baroness, Lady Sugg, has met a number of my concerns. It obviously could not meet my concern that we might have been able to do this by existing law, but it has more clearly directed the focus of the Bill to deal with the perceived harm, which is the intimidation, harassment or unfair pressure. It has not sought to hang measures which go far beyond what can be reasonably justified in a free society on to that definition.
A number of things that the original clause had in it are not to be found in the amendment proposed by the noble Baroness, Lady Sugg. Within the amendment, it is no longer a criminal offence to express an opinion—a concept that absolutely horrified me, and that no one could seriously suggest I would ever vote for given my political background and views. Nor does that amendment interfere with people’s liberties as to what they do in a private house, for example, as it explicitly makes an exception in that respect; nor does it impede directly the work that goes on inside churches if they suddenly find themselves inside a zone because the zone has been brought around them. One of the oddities of this legislation is that the shape of the zone is statutory and cannot take into account any particular local considerations.
My Lords, I rise to support Amendments 41, 42, 43 and 44. Like others, I have strong views on the subject of abortion; I suspect I am in a minority position within both this House and this country, but, as a number of noble Lords have said, today’s debate is not about abortion and what position any of us hold on that subject. That is a debate for another day.
I think there are two key points in relation to this piece of legislation which this group of amendments goes to: first, what is appropriate and proportionate in terms of the law, and, secondly, how do we protect everyone’s rights? I agree particularly with Amendment 44 from the noble Lord, Lord Farmer, as it deals with some of the very concerning wording in Clause 9. Also, it is surely a time for a level of pause for thought because, as the noble Lord, Lord Farmer, indicated, thankfully it is the case that we are not in the United States.
The current law regarding abortion has been in place for most of this country for longer than I have been on this earth—just about, if any of you want to guess my age in that regard. It is a question as to why this is suddenly an emergency-type situation. Are we seeing a scale of problems on the ground for which there is not an existing law? I would say that is not the case. We do need to have thoughtful law as to appropriate levels of protection for everyone, and therefore I am very much minded towards the proposal which says “Let us examine what actually the facts are, rather than rushing through a piece of legislation and indeed a clause which applies a particular draconian solution to that”.
On the issue of how we protect everyone’s rights, there are elements within Clause 9 that I think no one in this House could ultimately disagree with. If we are saying, for example, that we want to protect anybody, in any set of circumstances, from intimidation or threats, in every situation, I think all of us would say “Yes, protections need to be there”. Similarly, we would want to protect people from harassment, or from being impeded or blocked from something. Whether it is at a clinic or in any set of circumstances, I think everyone in this House would agree that those protections need to be there. I would question the necessity of this clause on those grounds, because a range of laws already provide that level of protection against threats and intimidation.
I thank the noble Lord for giving way. I understand the point he makes about the possibility of making the argument, but is his argument that the best place to have that debate—I think he used the word “battle”—is directly outside an abortion clinic as people approach, at the point at which they might be receiving treatment?
Let me make it clear that it is not a place I would see myself being. But the point is that, if they are doing it in a peaceful, persuasive way, people may take actions and views which we—
Well, it is good to see, in relation to that, the idea that we need to defend opinions and the rights to protest and free speech, even if we fundamentally disagree with the opinion that is put within that.
As has been indicated already, and as we have seen with PSPOs, the problem is that, in terms of interpreting the law, there is a level of mission creep that goes well beyond simply the issue of threatening or intimidation. For example, with PSPOs, we have seen people prosecuted for simply taking part in prayer.
As I said, if we are going to defend the right of people to freedom of speech and freedom to protest—and, yes, that always has to be done in a peaceful manner—let us do that not simply for things we agree with, or even things we disagree with, but even things that we find repugnant. As such, I believe that what is in Clause 9 is totally unacceptable. As I said, it mixes in things that all of us would find perfectly reasonable with things that go well beyond that. Seeking to criminalise an interpretation simply of influencing someone similarly takes this beyond what the bounds should be.
My Lords, I rise to speak to Amendment 45, tabled by my noble friend Lady Sugg, and to strongly and emphatically support the amendment in the name of my noble friend Lord Farmer. I am unconvinced as to whether, at the present time, Amendment 45 actually ameliorates the concern about incompatibility with the European Convention on Human Rights. I will be interested to hear the Minister’s specific answer to my noble friend Lady Sugg’s question. I do believe, however, that this amendment is still disproportionate and is a significant attack on freedom of speech and thought.
First, the amendment seeks to criminalise those who are
“influencing any person’s decision to access, provide or facilitate the provision of abortion services”.
When compared with Clause 9, this is still extraordinarily broad and could potentially cover a whole range of innocuous activities. I know that there is a value judgment to be made about handing a leaflet to a vulnerable woman offering financial or housing support, but what about silent prayer, as we have seen examples of more recently?
This amendment does not actually exclude the outside of private property, so anyone who is in their private garden or their own car expressing their conscience could be criminalised. For a law which specifically proposes to limit fundamental freedoms of speech, expression and even thought, should we not be very specific about which behaviours are being disapproved of and where?
Yet, this amendment is indiscriminately applied to every clinic in the nation. As noted, the prohibited behaviours are far too broad. For example, in Clause 9 the 150-metre arbitrary curtilage limit refers to the abortion clinic at Mattock Lane, Ealing, west London. Behaviours, such as standing silently as if praying, which are found to have influenced someone, are included. Quite how this applies is a moot point.
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Rather than banning all peaceful activity, the amendment prevents intimidation and harassment, defined quite precisely as communication by any means that is
“reasonably likely to cause distress or anxiety”
to a woman seeking an abortion. This prohibition ensures that women can access abortions without enduring disruptive protests, name-calling and otherwise distressing behaviour. Amendment 42 looks to cast a wide but realistic net compared to the rather vague proposal in Amendment 45, which seeks to prohibit “influencing”. I would like to clarify a few points that noble Lords may hear later on this subject from proponents of Amendment 45.
I believe it is too simplistic to say that Amendment 45 aligns English law with Northern Ireland’s Abortion Services (Safe Access Zones) Bill, with the blessing of the UK Supreme Court and that, therefore, we should feel reassured. I say this for the following reasons. First, the Supreme Court has not clearly identified “influencing”. That sets what I think is a worrying precedent for freedom of speech. Secondly, the UK Supreme Court did not say that Northern Ireland’s law would never lead to a situation incompatible with the European Convention on Human Rights. Rather, the test the court applied was whether it would almost always lead to an incompatible situation, so there might be some situations where a ban on influencing is incompatible with the ECHR.
There are also key differences between Northern Ireland’s law and Amendment 45. Notably, my noble friend Lady Sugg’s amendment applies to outdoor private spaces, and it carries a higher fine than under Northern Ireland’s law. It also does not explicitly ban filming women as they enter or leave an abortion clinic, or if it does, that is not clear, because it would require them to show that being filmed influenced their decision. If my noble friend implicitly accepts that Northern Ireland’s law should not be followed in its entirety, this House must decide on the best model to follow.
An Australian-style law is reasonable in these circumstances. It sets a clear threshold for the types of activities captured under the law, Australian courts have offered guidance on what the law means, and it offers stronger protections for women—for example, an explicit ban on filming them. Another key advantage of Australian law is that it has already been tested in the courts. The High Court of Australia upheld that it is valid in a key ruling in 2019, and in fact, the UK Supreme Court has quoted that judgment in its recent ruling on Northern Ireland’s law. The Supreme Court of Victoria has clearly interpreted the meaning of the communication prohibition, whereas the UK Supreme Court, as I said earlier, has not provided a clear interpretation of what “influencing” means or the activities it captures. I note that even other common-law jurisdictions such as Canada, which has a strict law in this area, do not ban influencing—and for good reason.
Amendment 45 would also ban silent prayer and goes further than supporters of my noble friend’s amendment wanted to go in Committee. I draw your Lordships’ attention to the remarks of the noble Baroness, Lady Barker:
“I listened carefully to a number of noble Lords who made emotive comments suggesting that we wish to ‘criminalise prayer’. In the case of a single person in silent prayer, no, we do not; in the case of a church where every member turns up, week in week out, to stand directly in the path of women trying to access a service with the avowed intent of frustrating their access, yes we do.”—[Official Report, 22/11/22; col. 1323.]
Unfortunately, this is a distinction without a difference in Amendment 45, which could criminalise anyone who prays silently. If silent prayer can be a form of communication about abortion, under an Australian-style law, and as clarified by the courts, it would be a crime only if it was reasonably likely to cause distress. I believe that that is a far more sensible threshold than the indiscriminate standard in Amendment 45.
Amendment 42 also avoids absurd situations. If we were to adopt similar guidance to, say, Victoria’s Department of Health, it would not extend to activities in the vicinity unconnected to abortion clinics, such as university lectures touching upon abortion. Similarly, it would create an exception so that road maintenance or construction works blocking the entrance to an abortion clinic would not amount to criminal liability. Amendment 45 does not contain a similar exception.
Finally with respect to this amendment, it is worth noting what the abortion provider Marie Stopes Australia says about the law in Victoria. It supports it, and has argued against laws that go further than it on the principle that more draconian prohibitions impose too great a burden on fundamental freedoms.
In the interests of time, I shall touch only very briefly on Amendment 41, which seeks to exempt most private property from the buffer zone. As it stands, both Clause 9 and the noble Baroness’s amendment would prevent, say, discussions about abortion from taking place in the garden of a private dwelling within a buffer zone.
Finally, Amendment 43 would ensure that penalties for offenders are proportionate and sufficient to match the severity of the offence, with a maximum penalty of an unlimited level 5 fine.
Creating buffer zones around abortion clinics is intrinsically fraught, and I hope that noble Lords see Amendments 41 to 43 as striking a careful balance between the aims of safe access zones to protect women and civil liberties. I look forward to hearing your Lordships’ views on the matter.
Having read my noble friend Lady Sugg’s amendment, I should add that she has clearly thought long and hard after listening to opposing views during the passage of the Bill. I can see how hard she has worked to refine what was referred to by one of the amendment’s authors in the Commons as a “blunt instrument”. Similarly, I sympathise with the sentiment that we need to respect the will of the Commons. However, confusion was unnecessarily caused by making this a conscience vote in the other place, as I said at earlier stages. Voting for buffer zones should not be identified with voting for women’s rights to access abortion. That is not what is at stake here. We can respect the will of the Commons but still require it to think again about immediate nationwide restrictions on access to public space.
I turn very briefly to the amendments in the name of my noble friend Lady Morrissey. Again, I respect her efforts to craft a clause that is more human rights-compliant and otherwise fit for purpose. However, neither she nor my noble friend Lady Sugg deal with the substantive underlying principle of the need for a body of conclusive evidence before bringing a bespoke criminal regime into force for activities outside abortion centres.
Her amendments, as we have heard, are closely derived from legislation from Victoria, Australia, cited by the Supreme Court with regard to Northern Ireland. But, again, paragraph 151 of the Supreme Court judgment refers to evidential claims that were available to point to, to legitimise drawing on the Victorian situation. Our Parliament does not yet have that evidence, and this is why I will be unable to vote for my noble friend’s amendments.
My amendment takes seriously the possibility that legislation might be needed, but it gives the Commons a proper opportunity to debate how the proportionality of such restrictions can be established through the same evidence-based process typically required in every other area, and which other jurisdictions have drawn on in this area. So I ask your Lordships: why the rush?
Clause 9, and the process that led to its being added to the Bill in the other place, has many of the hallmarks of emergency legislation. Adam Wagner’s book Emergency State, which details flaws in the emergency Covid laws, provides salutary warnings about proceeding too hastily. He makes the point that
“the brute force of emergency law-making does damage and we need to avoid making the same mistakes again.”
Emergency states are ignorant, says Wagner. He adds:
“Decision-makers have to rely on limited and potentially unreliable information ... little scrutiny can lead to ignorant decision-making and corruption. It results in many hidden injustices, which may never come to light, or at least not until much later. And the vast powers can well outlast the emergency which was used to justify them.”
There is not even the need for emergency legislation here, as there was with the Covid outbreak. Surely a review, as detailed in my amendment, to be completed within a year, would provide Parliament with the evidence to produce a considered response to what is actually going on near abortion facilities. We are all aware that abortion is a contested, ideological issue. The two opposing sides hold different views that are legally allowed to be held and expressed.
However, I return to my point that the Bill is not about the rights and wrongs of abortion. It is the Public Order Bill and, as such, is how Clause 9 should be viewed. Is there sufficient public disorder to warrant such an incursion into citizens’ civil liberties? The answer is that we do not know. Therefore, we need a review. I commend my amendment for your Lordships’ consideration and beg to move.
Of course, Northern Ireland is a different jurisdiction, and abortion is provided there in a very different way from that in England and Wales. I am not making the case that this legislation we are putting forward is identical to that in Northern Ireland: it is not, and nor should it be. This amendment reflects the needs of clinics and hospitals here in England and Wales, but it is important to note, because we all want to get the balance of this right, that the Supreme Court, in its ruling of 7 December last year, ruled that the use of the term “influence” was not only relevant but necessary to deliver on the introduction of safe access zones. It specifically stated that its removal and a sole reliance on “harassment, alarm and distress” or “impeding” provisions would leave women in Northern Ireland open to continued breaches of their rights, which is certainly not something we want. Again, recognising concerns about this wording in Committee, the offence is now one of strict liability in the new clause proposed by Amendment 45.
I will not support other amendments in this group if they are pressed to a vote. Amendment 41, which would put in some protection, does not actually go as far as Amendment 45, which exempts all private dwellings and places of worship within the zone. On Amendment 43, my noble friend Lady Morrissey criticised the level of the fine in Amendment 45, but I believe that her Amendment 43 puts forward exactly the same level of fine that we have put forward in Amendment 45. On Amendment 42, the use of Australian legislation in the proposed new clause was carefully considered and discussed with the Home Office at an earlier stage, a good few months ago now. It was decided that it would be better to base our new law on existing UK law, rather than on Australian law. Of course, as with Northern Ireland, there is a very different system for the provision of abortion, and a very different rights framework, and we now have the UK Supreme Court judgment.
I do not believe that these amendments fully address all the other concerns I have discussed, which noble Lords raised at earlier stages, and I think that Amendment 45 is more legally robust than the original, even with these amendments. I will leave it to other noble Lords to put forward the views they expressed in earlier debates. Lastly, my noble friend Lady Morrissey mentioned MSI. She is absolutely correct that MSI Australia is supportive of the legislation within Australia; however, MSI UK is very clear that it strongly believes that Amendment 45 is the right option for England and Wales.
On Amendment 44, I am grateful to my noble friend Lord Farmer for his courteous words as ever, and I share his desire to get this right, but I do not support another review by the Home Office. I wish this legislation was not necessary, but every week around 2,000 women use abortion clinics that are now regularly targeted by protesters. This activity is on the rise and much of it is organised and funded by groups from the United States. Action is needed to ensure that we do not allow this activity to escalate here in the UK. We are seeing these zones introduced in France, Spain, Canada, Australia, Northern Ireland and soon in Scotland as well. It is really important that we give women in England and Wales the same protection that women are getting in those jurisdictions. Patients, women’s groups, providers, medical practitioners and MPs are clear that we ought to take action now.
The original clause would, in my view, have actually precluded discussions between staff who were arguing whether a late abortion was justified in particular circumstances. The clause was so wide and so dangerous and, again, the things I have listed have been addressed in the amendment in the name of the noble Baroness, Lady Sugg. What was included also was the case of accompanying persons who might be having a genuine discussion with the woman concerned—maybe her sister or her partner—and perhaps taking different views in the discussion that is taking place within that area. That accompanying person provision has been dealt with, and I am glad that it has been. I am sympathetic to the amendments in the name of the noble Baroness, Lady Morrissey, but my main concern is that, when this goes back to the Commons, it goes back in a form in which it is not likely to be defeated. I think we are approaching that point. I would have preferred to have dealt with this in another way and for a review to take place, but we are where we are. It is a difficult judgment for Members of your Lordships’ House—or, at least, I think it is difficult. In my view, the work that has been done to propose this new clause has gone a long way to meet the concerns once you accept that something has to be done. In time, it may be seen to have some defects which would need further remedying, but that has influenced my approach to it.
Leaving that aside, if that was all that was in Clause 9, there would not be so much of a problem. I appreciate that Amendment 45 softened the language in some regards in relation to this, but according to some of the aspects that are within Clause 9 at present, we are going to criminalise anyone who
“advises or persuades”
or
“attempts to advise or persuade”,
or—perhaps most worryingly of all—
“otherwise expresses opinion”.
If Clause 9 goes through unchanged, we are making an expression of opinion a criminal offence.
The alternative wording in Amendment 45 talks about making it a criminal offence to influence, but surely at the heart of the concept of freedom of speech, and the value of democracy, is the peaceful way in which people try to persuade others of their point of view? It should be a battle of ideas. I indicated clearly that, where that goes beyond the art of persuasion towards any level of threat or intimidation, it is unacceptable and should be criminal, but if we are criminalising expressions of opinion or influence, that is fundamentally wrong.
As I indicated, I have a different view from many within this Chamber on the issue of abortion. But, if we are to defend freedom of speech and the freedom to protest, it is very easy for any of us to stand up and say that we believe in freedom of speech on an issue that we agree with, and it is very easy for any of us to stand up in this Chamber or elsewhere and say that we support the right to protest whenever we agree with that protest. But surely the test within any free society is about defending the rights of people who hold opinions that we disagree with—views which we would find unacceptable.