Abortion buffer zones: a UK challenge to core democratic values is now the law of the land

On 2 May 2023 the Public Order Bill, a year after it was announced in Westminster in the House of Commons, received  Royal Assent and became an Act of Parliament.

Its aim is to crack down on disruptive protests in England and Wales, mainly led by environmental groups. In the past year these have “forced thousands of police officers away from the critical work of protecting their communities”. Just in October, "the Metropolitan Police made more than 650 arrests in relation to Just Stop Oil activity in London.” 

The Act, described by many as draconian legislation which undermines freedom of speech and thought, turns not only actions such as blocking roads, occupying tunnels, obstruction of major transport works etc. into criminal offences -- but also any attempt to influence access to or provision of abortion services (Clause 9) however silent and passive in nature.

Recently the UN High Commissioner for Human Rights Volker Türk expressed his concerns about the Public Order Bill, urging the UK to reconsider this “deeply troubling legislation.”

On numerous occasions Clause 9 has sparked concerns that it might become a law which seriously undermines freedom of expression. It is a “sledgehammer to crack a nut,” as Lord Cormack has observed. It states that: “A person who is within a buffer zone and who interferes with any person’s decision to access, provide, or facilitate the provision of abortion services in that buffer zone is guilty of an offence”.

 In the final debate in the lower house, which addressed Clause 9, it was again (albeit unsuccessfully) criticised. One MP, Andrew Lewer, said that control over people’s thoughts is more appropriate in a dystopian novel than in a free and open society. Another, Jon Trickett, warned: “the British state claimed historically to be the bastion of our liberty, but today it is proposed that it become an engine of our suppression. An authoritarian state is being created here, and it is not acceptable.”

Clause 9 creates safe access zones around all abortion clinics in England and Wales and makes breaches criminal offences punishable with an unlimited fine. This is not only for harassing and threatening clinic visitors –- which is unacceptable behaviour already prohibited under the Public Order Act 1986, the Protection from Harassment Act 1997 and the Crime and Disorder Act 1998 –-  but also for any expression of opinion aiming to exert “influence” on the matter within the proscribed area. This includes silent praying within 150 metres from any part of the abortion clinic.

Clause 9 does not affect those facilitating abortion services or accompanying the woman with her consent.

The background to this clause can be found in legal developments surrounding the creation of a buffer zone in the proximity of an abortion clinic in the London Borough of Ealing. 

In 2018 the High Court of Justice and in 2019 the Court of Appeal dismissed, in Dulgheriu & Orthova v Ealing LBC [2019] EWCA, the challenge issued by the appellants (affiliated with a Christian group called Good Counsel Network) on the validity of the Public Spaces Protection Order (PSPO) prohibiting anti-abortion protests in the vicinity of the clinic and its compatibility with articles 9, 10 and 11 of the European Convention on Human Rights.

The Court of Appeal confirmed the High Court of Justice’s decision that the PSPO interferes with the appellants’ right to free speech and assembly in public places. But it said that a balance of rights had to be struck in favour of clinic visitors (§95 EWCA) who, as Turner J affirmed, felt “invaded at a time and place when they were most vulnerable and sensitive to uninvited attention” (§97 EWHC).

Last December, the Supreme Court ruled unanimously that the Stormont Assembly can legislate on abortion buffer zones around clinics in Northern Ireland to protect both clinicians and patients. In particular the court argues that the “existing laws did not adequately protect women seeking to access reproductive health clinics from activities which, even if non-violent, had the potential to deter them from availing themselves of those facilities” (§140).

And it concludes that, since Northern Ireland has recently won its battle to access abortion services, not supporting abortion buffer zones would mean to “align the law with the values of the opponents of reform” (§156).

In the past months, two members of the public have been arrested because they were suspected of silent praying or seen to be silently praying holding a placard with the words “praying for free speech”. These offences took place within a PSPO (public space protection order) which had been issued by the local authority near an abortion clinic.

Later Birmingham Magistrates’ Court found the defendants not guilty and the charges were dropped. In March, however, the woman suspected of silently praying was arrested again for what has been called a "thoughtcrime". She was questioned, not just about her presence within a PSPO but about her thoughts.

Now the question is whether Clause 9 of the Public Order Act is addressing a concrete issue not already covered by current legislation or whether it will have the effect of suppressing one side of the debate on abortion at the expense of citizens generally and of the idea behind every democratic society.

The right to express your views should be considered a pillar of every democratic society; society’s existence depends on the freedom to express and debate different views. Although this freedom may be limited by law, its limits should not depend on State, or even public, sympathy with the view in question but on whether that view is expressed in a way that truly constitutes violence, harassment or discrimination.

As Lord Jonathan Sumption, a former justice of the UK Supreme Court, argues: “What is new is the growing tendency for law to regulate human choices even in cases where they do no harms to others and there is no consensus about their morality.”

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