Public Order Bill
Monday 30th January 2023
(1 year, 2 months ago)
Lords ChamberPublic Order Act 2023 View all Public Order Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 82-I Marshalled list for Report - (26 Jan 2023)
Baroness Morrissey
“(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.
Baroness Morrissey (Con)
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.
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.
Lord Farmer (Con)
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.
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.
Baroness Sugg (Con)
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.
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.
Lord Beith (LD)
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.
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.
Lord Weir of Ballyholme (DUP)
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.
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.
Lord Hogan-Howe (CB)
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?
Lord Weir of Ballyholme (DUP)
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—
Lord Weir of Ballyholme (DUP)
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.
Lord Jackson of Peterborough (Con)
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.
The Lord Bishop of Manchester
My Lords, in Committee I shared my concerns about Clause 9 as it then stood. I am grateful for conversations that have taken place since. I particularly thank the noble Baronesses, Lady Sugg and Lady Barker. The latter has listened patiently and sympathetically to me and my friends on these Benches at some length.
My concerns regarding Clause 9 had nothing to do with the moral merits or otherwise of abortion; they lie in my passion to see upheld the rights of citizens of this land, both to receive healthcare and to protest. Women must be able to access lawful medical interventions without facing distressing confrontations, directed at them personally, when they are identifiable by their proximity to the clinic or hospital. At the same time, anyone who wishes to protest in general about abortion law must be able to do so lawfully, with the least restriction on where and when they may do so.
I am grateful to the noble Baroness, Lady Morrissey, for the proposals she sets out in Amendments 41 to 43, which build on the Australian example. Were they the only amendments put forward, they would have my support. However, what we now have in Amendment 45 is, I believe, something that strikes a more exact balance. It meets human rights requirements and contains sensible limits. It has widespread support and is, I believe, more likely to survive scrutiny in the other place. If it is moved, I intend to support it.
I accept the remarks of the Supreme Court regarding the necessity of proposed new paragraph (a) on influencing, but I have two brief questions on that matter on which I seek clarification. Much has been made in religious circles about whether silent prayer would be criminalised by this clause. We have heard it again tonight. As noble Lords might expect, I believe in the power of prayer, so I want to clarify on the record that the act of praying is not in itself deemed an attempt at influence, given that when I pray, I am trying to ask God perhaps to change the heart of a third party.
My second and rather less metaphysical question is intended to clarify that influence works both ways. Would a coercive and controlling partner, or ex-partner, determined that a reluctant woman should go ahead with an abortion and accompanying her against her wishes, be as guilty of the same offence as an anti-abortion campaigner?
Finally, I cannot support the amendment in the name of the noble Lord, Lord Farmer. It would remove safe zones from this Bill without providing any obvious parliamentary process for us to re-engage with the issue in a timely manner.
Baroness Thornton (Lab)
My Lords, I very much welcome the remarks of the noble Lord, Lord Beith. I am so glad to hear that he has considered this matter and come to the conclusion he has. Of course, I also welcome those of the right reverend Prelate.
I say to the noble Baroness, Lady Morrissey, that this is a good try, but her proposals might well have benefited from testing had she been involved in Committee. She might have changed her mind about how we in this House need best to reflect the clear will of the elected House on this matter. Not only has the elected House had a clear view on this matter, so has this House. Our job today is to make sure we provide at this point in the Bill an amendment that does that job. Amendment 45 does that because it complies with the EHRC, recognises differences and proposes a framework that reflects the issues as they pertain to abortion provision in England and Wales.
However, Amendment 44 would in many ways do what we saw the last time we discussed this matter: kick it into the long grass. Indeed, I remind the House that last time, it was defeated by 138 votes to 39. It would bring about a delay, meaning that thousands of women, nurses and midwives going about their lawful business would be harassed and intimidated. This seems to me to be really very straightforward.
Baroness Hoey (Non-Afl)
My Lords, I welcome the fact that there seems to have been a change in this House. No one really is pushing for Clause 9 just to stay as it was. I very much welcome that. I will speak in support of Amendment 44 from the noble Lord, Lord Farmer, and say a few words on what I thought was a wonderful speech from the noble Baroness, Lady Morrissey, on her amendments. I will support those when and if they are called, as well as Amendment 44.
Surely the role of this House must be to help enact laws that are necessary and proportionate, according to evidence. I have not seen the evidence to say that it is necessary to enact this whole area around abortion clinics when, as has been pointed out by other noble Lords, we already have legislation covering many—indeed all—of the activities that we would all find abhorrent. The importance of a review is that we can test whether, for example, the public space protection orders are working. It seemed that they were working when the lady who was silently praying was arrested. Have we looked in detail at what is working and what is not? Why do we need something else when these orders are in place? As a minimum, the House—and the Government—should be reviewing the PSPO regime to see whether it is working as intended. Good evidence makes good law, and the opposite is also unfortunately true.
Clearly, there is an appetite in the other place to “do something”. That is what politicians always call for. Something needs to be done, and they want to do it quickly; there is an appetite to act now. That being so, should Amendment 44 not be adopted, the House would do well to adopt a reasonable model based on a tried and tested approach. For that reason, I support the amendments in the name of the noble Baroness, Lady Morrissey.
Lord Winston (Lab)
I want to make the point that perhaps I am the only Member of this Chamber who has had that evidence. I have had it for years. It started with in vitro fertilisation—which was regarded as abortion then—when my patients were repeatedly harassed and made ill as a result of what was happening to them in the street outside Hammersmith Hospital and in other clinics, not only in mine. There is plenty of evidence to show that women were deeply distressed, and this created a very difficult issue for their care afterwards.
Baroness Hoey (Non-Afl)
I am sure the noble Lord is absolutely right in what he says; of course women would be distressed by that kind of behaviour. What I am asking is whether it is necessary to take this draconian approach. For me, the real problem with the amendment in the name of the noble Baroness, Lady Sugg, is the word “influencing”. The noble Baroness has said that it has been seen as perfectly okay, but I believe it goes much further than is necessary to achieve the law’s stated aims. I genuinely believe that it has grave implications for freedom of speech in the country; it is a drip-drip approach and a slippery slope to other ways in which freedom of speech will be attacked.
I reiterate what has been said by a number of other noble Lords: the UK Supreme Court ruling on Northern Ireland’s law cannot be interpreted as a judicial mandate to endorse Amendment 45, which is in many ways very different from Northern Ireland’s law; it is much more draconian. The Australian model, which was mentioned by the noble Baroness, Lady Morrissey, is reasonable, effective and clear. The Australian courts have interpreted what the communication prohibition means, and the requirement that
“communication must be reasonably likely to cause distress or anxiety”
suggests, I believe, that the law is tailored more properly to its objectives. It avoids overcriminalisation and it is responsive to the distinctions on the types of activities that Clause 9 should capture, as made in Committee by noble Lords on both sides of this debate.
I urge noble Lords to agree to a reasonable approach, the most reasonable of which has been put forward by the noble Lord, Lord Farmer. If not, and if others decide that we need to do more, I hope that we will be able to support Amendments 41 to 43, tabled by the noble Baroness, Lady Morrissey, ensuring that we protect women without completely disregarding civil liberties.
Lord Cormack (Con)
My Lords, I have often said in this House that the first question we should ask when confronted with a new Bill is: “Is this necessary?” This point was touched on by the noble Baroness, Lady Hoey, a few minutes ago. I do not believe that this Bill is necessary much at all, and I certainly do not think that Clause 9 is necessary.
I would like to make an appeal to your Lordships tonight. Why can we not convene a meeting before Third Reading, because in our House it is possible to bring forward an amendment on Third Reading. It is very important that my noble friend Lady Sugg should be prominently involved in that. She has genuinely tried—and I respect and honour that—but I do not think she has got it quite right, and I say the same to my noble friends Lady Morrissey and Lord Farmer.
I think we need to have a round table to discuss whether it really is necessary to keep Clause 9 in the Bill and what we should replace it with, if anything. I do not believe we have the solution tonight. Each of the amendments before us has certain merits but not a single one of them covers all the problems as perceived in the past. I still think that it is possible to deal with those things, such as the problems just referred to by the noble Lord, Lord Winston, with laws that are already on the statute books—books that are far too cluttered already.
Can we not just pause, reflect and discuss, and see if Clause 9 is necessary, which I do not believe it is? Can we decide what we would replace it with and which elements of the three sets of amendments before us tonight can best be combined to give protection, if it is needed, to those who are harassed—there is not a great deal of evidence but I accept that it happens—and to protect the freedom not just of speech, which is so important to all of us, but of private prayer, without which you will wrench the soul from a community? Nobody can stop my praying privately, because you do not know when I am doing it. It is important that we recognise that freedom of speech without freedom of religion is hollow and false. We have to preserve them both.
Lord Hogan-Howe (CB)
My Lords, I support the amendment from the noble Baroness, Lady Sugg, to which I have added my name. I do not support the review in the amendment from the noble Lord, Lord Farmer. Everybody has been careful not to say that there is no evidence but that there is insufficient evidence. I think there is clear evidence that there is a problem. In fact, the international response of other jurisdictions shows that it is not just a UK problem; I am afraid it is a more widespread problem than that. I think there is a need for a new law, and I support this particular amendment because it is a reasonable response to an unreasonable challenge at the moment.
I did some research with officers who are trying to deal with these problems at the moment to see whether this response looked reasonable. First, those who oppose Amendment 45 say that it prohibits protests. Of course, that is true, but we had that this afternoon here: you cannot protest here. It is not the only place in the United Kingdom where people cannot protest. We are talking about 150 metres around a relatively small group of places, that are the only places women can approach for this sort of treatment—it is a legal treatment though I accept that people have strong views about it. One hundred and fifty metres is really quite a small area.
Secondly, people say that public space protection orders should be used as an alternative. I am afraid that the problem is that they are not working in the way that was intended because they were not intended for this problem; they were intended to help local authorities deal with various unspecified problems. In some areas, drivers were parking up because they were trying to get to a certain place and people who lived in that area were having problems with engines running all the time, so it was used for that sort of thing. It is a very vague power which has been useful with many problems, but it has not proved particularly helpful with this one.
One of the challenges is that local authorities have many priorities, and this is not always one of them. They have challenges around budgets, so they cannot always go to court—so often, even if there is a problem, these protection orders are not being applied for.
The second problem is that, with each local authority approaching this in its own local way, the wording is inconsistent. The police are asked to apply them consistently, but each wording is different—whether there is intent there or whether there is not—and that really has caused a challenge.
The police have been criticised a couple of times today for their lack of action sometimes, but they are taking action in some of these cases: in fact, there have been complaints about the fact that they have arrested people who were praying. Although that has been used as an example of something draconian, in the cases where people have been praying the CPS has declined to prosecute. All that the police have done is make an arrest. They do not decide to prosecute: that is the decision of the prosecutor. In these cases—for example, in the West Midlands case—the decision has been based partly on the fact that no one can be sure whether a person who is praying is going to protest against or support abortion, so how could they possibly make a decision about prosecution?
Secondly, there was a case where an individual had displayed within a zone a protest sticker or protest banner within their vehicle that talked about murder and abortion. In that case it was not about a lack of evidence; the CPS decided it was not in the public interest to continue. So I am afraid we are not seeing prosecutions and we are seeing dilemmas, and people are saying that there are complaints about people’s behaviour.
Another challenge is that the women who are most affected by this do not want to make complaints. Why would you? You are at your most vulnerable. You do not want to be identified. You certainly do not want to go to court and be a witness. In some people’s cases, they have come to mainland UK to receive abortion services, not having been able to obtain them in another part of the UK—so why would they want to advertise the fact that they have got involved in an abortion service? So this has relied a lot on the staff.
The staff’s view is also important. Every patient who is affected—badly, in my view—is affected only on the occasion when they seek assistance, but the staff are there all the time, day in, day out. Imagine the pressure on them as they go to their job, which they take to be helping somebody to improve their life, or at least to travel forward in a different way.
The aggravated feature for me of the behaviour being complained about is that these women are en route to a treatment that they cannot obtain anywhere else. As I mentioned earlier in my question, I do not really think these are protests. Where there is not an order in place, the people protesting are directly outside the entrance or exit of these buildings, directly approaching the women who are going to seek a service. This is not about trying to convince the Government. It must be the least effective form of protest if it is trying to influence the Government. People in here are saying they did not even know there was a problem—so how can it possibly be that that has been an effective form of protest? I am afraid that is not really a sound argument.
If that is the best place where somebody can seek to influence someone, there is already a law saying that when someone is seeking abortion services, they should seek advice about other options. If they need financial support, adoption or any of the other things that might help somebody in these terrible circumstances—the dilemmas that I sure they must face—the law says they are entitled to that support from the medical advisers and from other people who will help them. The least effective way, surely, has to be shouting across the street or handing out a leaflet at the point where somebody is trying to get treatment and already has a dilemma. I cannot see that that is a sensible way to address the particular problem that we are talking about.
It seems that this gets worse at certain times of the year. More protesters turn up at abortion clinics during Lent. Why should women who have to go during the Lent period have to face more pressure than the women who go at a different period? That is someone else’s view.
I want to address the point about prayer. I think we all understand why prayer is particularly sensitive. Of course nobody wants to ban it, but not everybody finds prayer a supportive thing. I say this with respect to the bishop and as a Christian, but not everybody reacts in the same way. You cannot assume that a prayer expressed on the street is something that everybody wants to receive, and in my view they have every right to resist, or not to be faced with that dilemma. We have to keep that in mind too.
The only final thing I would like to say is that we have talked about behaviour in very general terms, but some of it has been abhorrent: handing out dolls in various stages of development, handing out protest leaflets that are very explicit on what people are complaining about, and judging people at a point when they have a very difficult decision to make. I say finally that this chanting carries on can be heard in the clinics—it is very obvious when you think about it, but I had not until the weekend. At the point at which women are receiving treatment, they can hear this chanting and hymn singing outside. Would you like it, in any medical treatment? It is just not acceptable and something needs to be done.
I like the tone and broad direction of the amendment from the noble Baroness, Lady Morrissey, but I worry, that with people’s human creativity and that 150 metres around the clinics, they would be very creative and the only people who would suffer from that would be the women. So I cannot support that amendment, but I understand why it was made. Finally, I will say that I support Amendment 45 for the women’s sake, for the sake of people who are employed there, and for anybody else who might be visiting at the very time that these protests are being made.
Lord Shinkwin (Con)
My Lords, I rise to speak in support of the pragmatic way forward, provided by cross-party Amendment 44 in the name of the noble Lord, Lord Farmer, and the noble Baronesses, Lady Fox and Lady Hoey. I thank them for tabling it, and I do so for a particular reason. Some would have us believe, as we have heard in this debate, that this is simply about abortion. Noble Lords should be clear: it is not. There is so much more at stake that should concern us all. This amendment gives your Lordships’ House the opportunity to chart a more measured way forward that avoids the perils of passing a law that undermines a hard-fought fundamental freedom: the freedom of conscience—a freedom that, surely, it is our responsibility and our privilege to champion and, most certainly, not to undermine.
I will not rehearse the points I made when we last considered this clause. Suffice it to say, it frightens me, because it threatens freedom of conscience and creates a precedent with potentially huge ramifications, which should surely alarm and unite all of us who value democracy. Some noble Lords have mentioned urgency—even emergency legislation. This is why we cannot afford to rush headlong without a review—just a review, not a final decision—being conducted first so that, in line with subsection (4) of the new clause proposed by Amendment 44, the proportionality of the measures proposed in Clause 9 can be carefully considered in the round, taking the views of all the stakeholders, including, of course, abortion providers, into account. We talk in this Chamber about the danger of passing legislation with unintended consequences. This clause proves our point perfectly. It has danger written all over it.
I say to any noble Lord who does not care about the risks of undermining freedom of conscience, about setting dangerous precedents or about passing laws brimming with unintended consequences: please, go ahead—vote for this clause and for other amendments. But if any noble Lord has so much as a shred of doubt, I urge them to vote for the review which, I repeat, is not a final decision. It is simply a review, proposed by Amendment 44.
Baroness Fox of Buckley (Non-Afl)
My Lords, the debate in Committee was extensive and expressed concern that the wording of Clause 9, whether it intended to or not, was setting a dangerous precedent in which free speech and opinion, through giving out leaflets, could be criminalised in state-designated zones around hospitals and clinics. Some of us asked, “Where next?”, and I put down amendments to Clause 9. I am really pleased that the debate led to people changing their minds because concerns were heard, and I commend the noble Baroness, Lady Sugg, on listening. Amendment 45 is undoubtedly a different provision from having that Clause 9 and, in my opinion, is much improved from a civil liberties point of view.
We should therefore note that the proponents of Clause 9 now do not support it. Good—that is that out of the way. However, I have several problems with Amendment 45 but will concentrate on one at this time. It is about its proposed new subsection (1)(a), which has the idea that there should be no attempt to influence
“any person’s decision to access … the provision of abortion services”.
Influencing has been discussed here this evening in appropriately legalistic terms, which are important, but I want to bring a different perspective. It is dangerous to suggest that influencing someone to change their mind about a decision made should be against the law, in almost any circumstances. This is not the same as suggesting that the appropriate place to have, as somebody called it, the free speech debate on abortion is outside an abortion clinic. I organise a festival called the “Battle of Ideas”, but we should not be having a battle of ideas outside an abortion clinic when somebody is trying to access healthcare. That is not the basis on which free speech is threatened by these buffer zones going national, which I think it is.
Many women are very firm and clear; they have made a rational decision that they want an abortion. They have given a lot of time to that decision and will not be deterred. I do not think they would even be deterred by anti-abortion vigils going on, because they know what they want to do. It is a bit distressing but they go in, and good luck to them. However, some women may be unsure. If they are toing and froing, they should and must be free to change their mind at any time and in any direction, up until either termination or what have you. It is not coercive if you think again. If a woman is trying to work out, “Should or shouldn’t I have a termination?”, they can go to see a counsellor at BPAS or a Marie Stopes clinic because they are not sure. If somebody tries to influence them—not in one way or another, but by getting them to talk it through and think about it—a woman might then leave that counselling service and say, “I’ve thought about it now. I’ve made my mind up and I’m going to have a termination”. That is a woman’s moral autonomy and we assume she is not coerced in that situation. A woman who may not be sure and is still thinking about it, even as she goes in for a termination, might be given a leaflet and then says in her own defence, “I’ve changed my mind. There may be an option of getting some practical support for pregnancy”.
Whatever the reason is, that is their choice. The point is that I am pro-choice. I do not want us to undermine women’s agency in our enthusiasm to support laws presented as protecting women. We should not legislate on the basis of worrying about women, how they feel, and their being distressed. Influence is something we should protect. I want to influence you now. I might be failing, because you have the capacity to listen and make a decision. Influencing is the basis of democracy. We should be careful about saying that we should not be allowed to influence because a Bill in Parliament said, “Don’t influence in that bit of the country”.
I consider these vigils insensitive and a nuisance. I disagree with the anti-abortionists outside. I think that abortion is a woman’s right to choose and a key right for women. I find the views of the people on these vigils offensive, and their demonstrations are often objectionable and distressing. However, in a democracy we have to tolerate people who sometimes have views we find distressing or offensive.
I want to emphasise that earlier we had lots of debates about proportionate law-making and civil liberties. Everyone on this side of the House has made some fantastic speeches about how we have to be careful about bringing in laws and what the thresholds are. Amendment 1, which I spoke on and supported, suggested a much higher threshold for what we consider “serious disruption”. I do not think these vigils, however obnoxious they are, would merit even the lower threshold the Government had. Basically, what I am saying is that I do not like them, but I do not think we need a law against them. I listened in Committee, as well as the noble Baroness, Lady Sugg, and changed my mind. I was trying to amend Clause 9, but instead I do not think we should amend it at all. We should review whether we need nationally mandated buffer zones at all. I do not want to amend the buffer zones; I want to stop, pause and look at the evidence.
Throughout Committee and since, I have talked to lots of people on all sides. I have been inundated by my mates on the pro-choice side and people on the other side. What struck me was the variance in what I was hearing. We have heard from a former police leader that he has gone round and there is a real problem. We heard from the noble Baroness, Lady Sugg, that this is escalating. There is American money, and all sorts of things are happening. We have heard that, since Roe v Wade, there are lurid stories of quite aggressive things happening outside abortion clinics. I have also heard on the other side that all anyone is doing is silently praying and it is completely benign.
The truth of the matter is that, if we are going to make such a dramatic change in the law from locally decided PSPOs, where there is a particular problem, to a national decision to carve up some public space and say, “No, you are not allowed to stand there”, when there might not have even been a problem, can we not at least base it on what is really going on? Public space protection orders are local remedies. I do not like that carving up of public space, but it is there and it is used. In 2018 the Home Office asked the same questions we have asked tonight, did an extensive review of vigils around abortion clinics and concluded that introducing national buffer zones would not be a proportionate response considering the experiences of the majority of hospitals and clinics and that the majority of activities are more passive in nature. People who wanted this clause say, “No, that is out of date and completely wrong. The 2018 review does not hold”. Fine; let us have a 2023 review. That is all I am saying, let us find out; I am adamant about that.
One of the things I have been completely won over on is that the victims of these vigils are often not women trying to access a termination but the staff day after day. When you are going in for the termination, they might annoy you once. I cannot imagine anything more irritating than having to walk past this if you are trying to do your job providing women’s reproductive healthcare.
Let the review look at whether we can have a particular way of dealing with that. When I was talking about PSPOs, I heard, “PSPOs don’t work, you know; they’re useless at this”. In that case, we need a review. Come back in less than a year, so we can have decent legislation that fits the facts, not the virtue signalling. For the sake of women’s rights, it seems important to me that we take this seriously and not just do it as a political act.
Lord Etherton (CB)
My Lords, I shall support Amendment 45, subject to one important qualification. My experience in relation to this derives from presiding in the Court of Appeal over the very first buffer zone case, Dulgheriu & Anor v the London Borough of Ealing. Ealing set up what is now called a buffer zone around the Marie Stopes clinic, and I will refer to a couple of matters that have arisen in the course of this debate which informed the judgment in that case. We dismissed the application for a public spaces protection order, which was made by a Christian group called the Good Counsel Network. It protested daily, and its protests comprised a variety of different actions, including presenting people who were going into the clinic with posters of foetuses at various stages of development, distributing prayer beads and putting up tents. Overall, the object was to prevent an abortion taking place. There was also evidence that they called out “Mum” to the women going in, that they presented puppet babies and that they held both verbal and non-verbal vigils. The evidence was that that was extremely distressing to vulnerable women, who were going into the clinic for advice or treatment, and it was equally clear that the staff were also extremely upset by what was happening.
I am afraid that I disagree with those who say we need a review to see whether the legislation is necessary. It is clear that the 2014 Act under which the public spaces protection orders are made is not designed to protect individuals in this way; it is designed for the benefit of a community when there is an action or activity that is harmful to the community. So there is no legislation that can provide this sort of protection, so far as I am aware and Ealing was aware, and which is designed specifically for this type of attack, in effect, on very vulnerable people seeking medical advice.
I agree with my noble friend Lord Hogan-Howe in this respect: this is not like the protests we have discussed so far today; these are actions directed to particular people who are particularly vulnerable. There is no other legislation, so the only question is: do we have this on a national or a local scale? Under the 2014 Act, a number of consultations have to be conducted. They can take a great deal of time—not just weeks or months but sometimes years; the Ealing consultation took a very long time to complete—so, from my perspective, legislation of this kind is needed for the protection of vulnerable individuals. Amendment 45 covers the ground perfectly, subject to one thing: I do not believe that it is consistent or appropriate for the maximum penalty for this type of offence to be limited to level 5 on the standard level.
For tunnelling, the penalties range from fines to imprisonment. Many of these religious groups are very well-backed; I do not anticipate at all that, if there was a fine, that would be the end of the matter. I think there would be repeat offences. Consistently with the earlier provisions in relation to tunnelling, for example, on indictment there should be provision on repeat offences for there to be the ability to pass a sentence of imprisonment.
Lord Paddick (LD)
My Lords, this has been a long and passionate debate. We support Amendment 45 and only Amendment 45 in the name of the noble Baroness, Lady Sugg, signed by all sides of the House—the noble Lords, Lord Ponsonby of Shulbrede and Lord Hogan-Howe, and my noble friend Lady Barker.
As many noble Lords have said, this is not about the rights and wrongs of abortion. This is about someone who has made the very difficult decision to seek the help of an abortion service provider. As they approach the abortion clinic, they should not be met with groups of individuals whose sole purpose is to stop the woman securing the abortion services she is seeking. Of course, that does not necessarily mean physically standing in the way, but the mere presence of individuals can be intimidating to vulnerable people who are seeking such help.
It has been said that these individuals want to offer advice, but, if they are being honest, that advice is, “Don’t have an abortion”. Abortion service providers have to assess the needs of the individual seeking an abortion and offer advice and counselling on the options available, including: adoption; government and NHS support for if they decide to go through with the pregnancy; and the implications of having an abortion. Those who propose alternative amendments must surely accept that the presence of anti-abortion protesters in buffer zones amounts to a last-ditch attempt to prevent abortions, not to provide the objective, even-handed, science-based advice that is provided by abortion service providers.
Amendment 45 ensures the measure passed by 297 votes to 110 in the other place is European Convention on Human Rights-compliant. My understanding is that the Minister will confirm that the Government now consider this to be the case. We do not support the amendments in the name of the noble Baroness, Lady Morrissey. Amendment 41 seeks to remove the chance of a person being criminalised for expressing an opinion on abortion from their front garden or balcony. If there is a discussion going on between individuals in such places, they are unlikely to be heard by passers-by. If they are shouting at each other, either with the intent of influencing those attending abortion services or being reckless as to whether they might influence that decision, they must be covered by this clause. It is quite clear what Amendment 45 seeks to achieve, and the noble Baroness’s amendment is unnecessary.
Amendment 42, the noble Baroness claims, provides a pragmatic, reasonable approach to amend Clause 9 in a manner that respects the will of the Commons and seeks to make the clause more likely to be compatible with the ECHR. Yet Amendment 45 provides a pragmatic, reasonable approach that respects the will of the Commons and, the Government believe, is compliant with the ECHR. With respect, a safe access zone law from the state of Victoria, Australia, has not been tested for its compliance with the European Convention on Human Rights.
Amendment 43 may replace punitive prison sentences with fines compatible with similar offences, but so does Amendment 45. We do not support the amendment in the name of the noble Lord, Lord Farmer, supported by the nobles Baronesses, Lady Fox of Buckley and Lady Hoey. The purpose of the amendment, among other things, is to review the necessity of further legislation in this area, and whether legislating further would be proportionate.
Why has the noble Lord not put down such amendments to every other clause in this Bill, as there is overwhelming evidence, including from the police, from Just Stop Oil protesters, who are going to change tactics because too many of them are in jail under existing legislation, and many others, that legislating further on all these other issues is disproportionate?
I am grateful to Racheal Clarke at BPAS for her advice and briefings on this issue, where the case is strongly made for this clause, as amended by Amendment 45. Half of those treated by abortion clinics last year attended abortion clinics targeted by anti-abortion groups—more than 100,000 people. Protesters target the most-used clinics. People are delaying seeking abortion services because of encounters with anti-abortion protesters in the vicinity of abortion clinics, adversely affecting their clinical outcomes as well as suffering psychological impact. Police at a local level report being unable to address existing problems because of a lack of legislation.
Of the 50 abortion clinics targeted in the last five years, only five are now protected by public space protection orders, which are expensive for local authorities to prepare cases for and fight in the courts, were they to be challenged, and have to be renewed every three years. The threat of such challenges deters some local authorities from taking action when it is needed, and the refusal of a local authority to apply for a PSPO cannot be challenged. Unlike the rest of this Bill, there is clear evidence of the need for this clause as amended by Amendment 45.
Amendment 45 significantly amends the existing Clause 9. It takes into account many of the concerns expressed by noble Lords in Committee, and the Government now believe that it is compliant with the European Convention on Human Rights. We have had the judgment of the Supreme Court on similar legislation in Northern Ireland, as I referred to in a previous group. This clause, as amended by Amendment 45, is necessary and proportionate and we will support it.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been a wide-ranging and fascinating debate, and some would say that this may be the House of Lords at its best.
I shall first address the amendments moved by the noble Baroness, Lady Morrissey. She has come late to the party, and I have to say that I think that her amendments have suffered for that reason. Her amendments have not been tested against the Human Rights Act in any way; we do not know what the House of Commons would think about them, and we do not know what the Supreme Court would think about them. Of course, that is in contrast to Amendment 45, where we have a good view of the House of Commons’ likely view, as well as that of the Supreme Court, and as far as we know it is HRA compliant. So I think the noble Baroness has difficulties with her amendments.
The noble Lord, Lord Farmer, spoke to his Amendment 44 and spoke about the lack of use of public space protection orders. I thought that we heard very effectively from the noble Lord, Lord Hogan-Howe, about how public space protection orders had not in practice been put to any great use. In fact, the noble and learned Lord, Lord Etherton, in his speech also explained why they were not suitable for protecting individuals, as opposed to the rights of groups. But I have to say that I think that the noble Lord, Lord Farmer, betrayed himself at the end of his speech when he spoke about the lack of evidence of public disorder, which he prayed in aid for having a review. I have to say that I am not thinking about public order —I am thinking about the individual women who are going to get these services and are being intimidated through cruel protest, in many ways.
I turn to the amendment from the noble Baroness, Lady Sugg, to which I also have my name. I pay tribute to her for all the work that she has done on this matter; I know that she has been in constant discussion with Members of the other place and the Government, and this really is as good a chance as we have to get something on the statute books in good time. As I say, I pay tribute to her. I am also pleased that the noble Lord, Lord Beith, has welcomed these efforts.
One of the most influential speeches was from the noble Lord, Lord Hogan-Howe, who talked about the practicalities of policing a 150-metre zone and local authorities being reluctant to put in place public space protection orders. He also talked about the ingenuity of protesters potentially being able to get around the amendment of the noble Baroness, Lady Morrisey. That was perhaps one of the most influential contributions this evening. I hope that the noble Baroness tests the opinion of the House and I look forward to the Minister’s response.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I echo other noble Lords who said that this has been a wide-ranging and fascinating debate. As has been referenced and as noble Lords will be aware, through a free vote in the other place, Clause 9, which establishes buffer zones outside abortion clinics in England and Wales, was added to the Bill by 297 votes to 110. I said during the Second Reading of the Bill and in Committee that the Government will respect the will of the House of Commons.
At the time of introducing this Bill in the House of Lords, I signed a Section 19(1)(b) statement under the Human Rights Act 1998. This was because, at the time, we believed it was more likely than not that Clause 9 would be found to be incompatible with the European Convention on Human Rights. We have considered this again following the Supreme Court’s judgment in relation to the Abortion Services (Safe Access Zones) Bill in Northern Ireland. We now believe that Clause 9 is more likely than not to be compatible with the convention. However, we must be clear that while we can draw some parallels between Clause 9 and the Bill in Northern Ireland in relation to the balance of rights, they are not directly comparable. In particular, the threat levels from protests are different in Northern Ireland and the Northern Ireland Bill does not cover private property. It is also worth noting that the legislation in Northern Ireland is not yet in force. There have been no prosecutions, so it is difficult to make any assessment regarding enforceability of the Bill in Northern Ireland.
Clause 9 was described at the time in the other place as a “blunt instrument”, as others have noted. There is always a balance to be struck between the rights of protesters and the rights of others to go about their daily business free from harassment and disruption, as we have heard debated in relation to many of the other clauses of this Bill. People’s rights to gather, express their views and practise their religious beliefs are protected under Articles 9, 10 and 11 of the European Convention on Human Rights. People’s rights to privacy in accessing healthcare services are protected under Article 8. All these rights are qualified, and it can be appropriate to infringe on them sometimes—for example, to protect other rights or prevent crime.
The Government committed to work with noble Lords across both sides of this debate to make Clause 9 clearer and more enforceable. I thank those noble Lords who took the time to meet me and discuss this issue, and I can assure them that all views were taken into careful consideration and constructive conversations were had on all sides.
The Government have decided to step back and will take a neutral stance during this debate. I committed, as I said earlier, at this Dispatch Box to respect the will of the House of Commons, and I think the best way to do that is to allow the House of Lords to express its will. This clause will undoubtedly be tested in the courts. But this evening, we are offering a free vote to noble Lords on the Government Benches—although I cannot speak for the other Benches—so that noble Lords can vote with their conscience on where the balance of rights should lie.
The Government believe that all the amendments on the Order Paper today would more likely than not be found to be compatible with the European Convention on Human Rights. With that, it is now for the House to decide which amendment, if any, they wish to support.
Baroness Morrissey (Con)
Given that, even if my amendments were passed, the whole clause would be overturned by a majority of support for either Amendment 44 or Amendment 45, I will save a few minutes of your Lordships’ time and beg leave to withdraw the amendment.
Lord Farmer
“Review into certain activities taking place outside abortion clinics in England and Wales(1) The Secretary of State must arrange for the carrying out of a review into activities taking place in the vicinity of abortion clinics in England and Wales which could influence any person’s decision to access, provide, or facilitate the provision of abortion services.(2) The review must include evidence from and consultation with the following—(a) the operators of abortion providers,(b) owners and occupiers of the land within proposed buffer zones,(c) the National Police Chiefs Council,(d) individuals, charities, and organisations impacted by proposed buffer zones,(e) the relevant local authorities, (f) the public, and(g) such other persons or organisations as appropriate.(3) The review must consider the effectiveness of existing relevant powers including, but not limited to, the power under section 59 of the Anti-social Behaviour, Crime and Policing Act 2014 (power to make public spaces protection orders).(4) The review must assess the necessity of further legislation in this area, and whether legislating further would be proportionate.(5) The Secretary of State must publish and lay before each House of Parliament a report on the outcome of the review before the end of the period of one year beginning with the day on which this section comes into force.”
Lord Farmer (Con)
My Lords, I agree that it has been a very wide-ranging debate, with passion on both sides. I come back to the point of evidence and I start with the fact that I do not think a review was debated in the Commons. The circumstances under which this clause was attached to the Bill in the Commons were all a bit confused. At one stage, the Government had said it would be whipped, because it was a conscience vote, and then they allowed it to be a free vote with, I think, an hour’s notice. Within an hour, they had a big majority. Well, it is about abortion; it is an emotive subject. As I say, there was no debate about the evidence-gathering and it came to us, as we see, as a blunted instrument.
Lord Farmer (Con)
My Lords, it is gone 10 pm now, but I wish to test the opinion of the House.
Baroness Sugg
“Offence of interference with access to or provision of abortion services(1) It is an offence for a person who is within a safe access zone to do an act with the intent of, or reckless as to whether it has the effect of—(a) influencing any person’s decision to access, provide or facilitate the provision of abortion services, (b) obstructing or impeding any person accessing, providing, or facilitating the provision of abortion services, or(c) causing harassment, alarm or distress to any person in connection with a decision to access, provide, or facilitate the provision of abortion services.(2) A “safe access zone” means an area which is within a boundary which is 150 metres from any part of an abortion clinic or any access point to any building or site that contains an abortion clinic and is—(a) on or adjacent to a public highway or public right of way,(b) in an open space to which the public has access,(c) within the curtilage of an abortion clinic, or building or site which contains an abortion clinic, or(d) in any location that is visible from a public highway, public right of way, open space to which the public have access, or the curtilage of an abortion clinic.(3) No offence is committed under subsection (1) by—(a) a person inside a dwelling where the person affected is also in that or another dwelling, or(b) a person inside a building or site used as a place of worship where the person affected is also in that building or site.(4) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.(5) Nothing in this section applies to—(a) anything done in the course of providing, or facilitating the provision of, abortion services in an abortion clinic,(b) anything done in the course of providing medical care within a regulated healthcare facility,(c) any person or persons accompanying, with consent, a person or persons accessing, providing or facilitating the provision of, or attempting to access, provide or facilitate the provision of, abortion services, or(d) the operation of a camera if its coverage of persons accessing or attempting to access an abortion clinic is incidental.(6) In this section— “abortion clinic” means—(a) a place approved for the purposes of section 1 of the Abortion Act 1967 by the Secretary of State under subsection 1(3) of that Act, or(b) a hospital identified in a notification to the Chief Medical Officer under subsection 2(1) of the Abortion Act 1967 in the current or previous calendar year, and published identifying it as such, where “current” or “previous” are references to the time at which an alleged offence under subsection 1 of this section takes place;“abortion services” means any treatment for the termination of pregnancy;“dwelling” has the same meaning as in section 1 of this Act.”Member’s explanatory statement
This amendment replaces Clause 9 with an updated version following concerns raised at earlier legislative stages in the House of Lords; and in light of the Supreme Court judgment of December 2022 regarding a comparable law in Northern Ireland and the need to ensure compliance with the Human Rights Act 1998.
Baroness Sugg (Con)
My Lords, I am grateful to the many noble Lords who have stayed so late to listen to this important debate. It has been a considered debate, as others have said, and it has been a long one, so I shall be quick. I am very grateful to the noble Lords who have recognised the genuine efforts we have made with this amendment to find a reasonable and considered way through this, a way that will be accepted by your Lordships and by the other place. Amendment 45 is a more legally robust clause, it is compliant with human rights, it delivers the intent to protect women when they are accessing their legal right to healthcare and I would like to test the opinion of the House.