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Public Order Bill

My Lords, I shall speak to a range of amendments associated with Clause 9: Amendments 80, 81, 82, 83, 86, 89, 92 and 94. I have also put my name to Amendments 88 and 90 in the name of the noble Lord, Lord Beith, and have some sympathy with Amendments 98 and 99 in the names of the noble Lord, Lord Farmer, and the right reverend Prelate the Bishop of St Albans.

Clause 9 creates a new criminal offence of interfering with

“any person’s decision to access, provide or facilitate the provision of abortion services”

in a designated buffer zone. The most contentious aspects of the clause centre on the definition of “interfering with”, which criminalises a wide range of activities usually associated with free speech and the right to assemble.

However, Clause 9 also makes any gathering outside an abortion clinic or a hospital providing abortions the subject of criminal law. Currently, where there have been problems outside a building facilitating abortion services, the mechanism for dealing with them has been locally decided and designed through public space protection orders—PSPOs. Police and local authorities have the ability to set up zones in response to complaints over gatherings around specific abortion providing facilities. Clause 9, in contrast, introduces a catch-all blanket ban across all service providers, regardless of whether there are problem protest activities taking place. This seems to me to be totally disproportionate.

Although I am no fan of PSPOs per se—councils carving ever more public space away from public use is not a positive trend—none the less, the aim of my Amendments 88, 89 and 90 is to repose the solution in relation to abortion protests as localised PSPOs based on consultation and reviewed annually, so as not to normalise prohibitions.

Because Clause 9 focuses on the issue of abortion, which we know is an emotional and morally challenging issue, it is worth taking a step back. The Government’s reason for bringing forward the Bill overall is to deal with the new protest tactics of Extinction Rebellion and its offshoots. Many of us have noted in previous debates that we do not support these anti-social tactics and some of us have even been clear that we have no sympathy with the nihilistic, catastrophising philosophy behind the eco-guerrilla warfare that activists have been waging against the British public.

Despite that, there have been widespread concerns across the House querying whether these new laws are necessary or proportionate, and noting that we already have laws on the statute book to deal with aggravated disruption, even if these laws are not being used effectively by the police, which is a different problem. There has also been widespread unease, which your Lordships have illustrated in myriad ways, about how various clauses in the Bill might have unintended draconian consequences for the general right to protest, far beyond Just Stop Oil activists or our attitudes to them.

For me, the same concerns are absolutely true of Clause 9. However, the difference is that many opposing the Government on the rest of the Bill are supportive of this clause. Seemingly, this is because noble Lords want to be unconditionally supportive of every woman’s right to access abortion facilities without hassle or hostility. As a passionate advocate of women’s reproductive rights and bodily autonomy, I am very sympathetic to this view. However, this is not the key prism that should inform our approach to Clause 9. I urge your Lordships to scrutinise Clause 9 with similar dispassionate and impartial eyes as have assessed the rest of the Bill in relation to Just Stop Oil—that is, beyond our attitudes to abortion.

Stella Creasy, the MP who effectively authored this clause, was quite right when she said in the other place that this new clause is not about the abortion debate. However, she argues that it is about ensuring safe access to abortion healthcare, and this is where the dispute starts. All the evidence indicates that the activity happening outside clinics, while undoubtedly unsavoury, does not threaten safe access. What is more, if there are any instances of women’s safe access being obstructed, which is totally unacceptable, many pieces of legislation already exist to protect women if they face intimidation or harassment, as Home Office Minister Kit Malthouse pointed out in the Public Bill Committee debate in June. For example, the Public Order Act 1986 prohibits causing harassment, alarm or distress, and includes a specific power to impose conditions on assemblies that seek to intimidate others not to do an act they have a right to do.

As with other parts of the Bill, the police have the powers to target specific instances of behaviour or activity if they constitute blocking safe access to abortion facilities. In 2018, the then Home Secretary, after concluding an in-depth review of the abortion clinic buffer zones, stated that he was

“adamant that where a crime is committed, the police have the powers to act so that people feel protected.”—[Official Report, Commons, 13/9/18; cols. 37-38WS.]

Given the importance of the rights at stake here, it seems particularly important that the police use their resources and their existing powers appropriately, to protect staff at abortion facilities and service users alike —but for that to happen, none of this requires Clause 9.

Do not get me wrong; I have very little sympathy for those who think that it is appropriate to gather outside abortion clinics. It is wholly unpleasant to target any individual woman going into hospital to access a legal termination. Waving gruesome images of dismembered foetuses, following women and medical staff doing their jobs, calling out, “your baby loves you” or “murderers”, hanging clothes around clinic entrances—this is crass insensitivity rather than compassion.

However, to be balanced, pro-life activists who attend these vigils will dispute these anecdotes and claim to be simply offering crisis pregnancy support, giving women choices by offering help financially, in raising a child, et cetera. There are, I concede, two competing narratives. I am conscious of the 2018 Home Office review, which found that those gatherings largely comprise passive activities such as prayers, leafleting, placards, singing hymns and so on. Regardless of which narrative you buy, it is wholly insensitive and intrusive to try to engage individual women at such a time, effectively demanding that they account for their personal moral decisions to strangers at a rally. I have no doubt that this would upset most women. It would upset me.

But whether it is upsetting is not what we should be talking about. The key question is whether it should be illegal and whether it constitutes a threat to safe access. My problem with Clause 9 is that it does not distinguish between activities causing actual objective harm and harassment, which threaten safe access, and activities with which we may disagree or which we might find disagreeable. Therefore, we must resist the temptation to create a law that criminalises otherwise

legal activities based on a distaste for those activities. How the Bill defines “interferes with” will make an extraordinary range of activities in a particular area punishable by lengthy stints in prison or unlimited fines.

Some of the most egregious and censorious parts that my Amendments 88 to 90 seek to strike out are,

“seeks to influence … advises or persuades, attempts to advise or persuade or otherwise expresses opinion … informs or attempts to inform about abortion services by any means, including, without limitation, graphic, physical, verbal or written means”.

In other words, Clause 9 outlaws leafleting, holding placards, expressing opinions, persuading and informing. Some will say, “Don’t worry; this is only to be used in very specific instances of access to abortion, and it is only confined to designated areas”. But as Big Brother Watch points out, creating prohibitions on protest on an issue-by-issue basis is not an appropriate way to make law. It sets a precedent that will inevitably lead to attempts to prevent speech, expression, information sharing, assembly or the holding of protected beliefs around other sites or in relation to other controversial or unpopular causes.

4.45 pm

If we pass Clause 9, why will other institutions not demand buffer zones around their special case facilities? If we consider that in Clause 9 a buffer zone is defined very broadly as

“150 metres from … any access point to any building or site that contains an abortion clinic”,

does that not make protests of all sorts at hospitals potentially unlawful? What if you wanted to organise a vigil outside a hospital in which, for example, babies died due to negligence, such as in the maternity services scandal recently? What about a rally against the use of puberty blockers on teenagers? Would that be banned too? Note that when Labour introduced an amendment to the Police, Crime, Sentencing and Courts Bill for fast-track PSPOs to be used against gatherings in the vicinity of vaccination centres, it also made a special case and extended the precedence for another medical procedure to be protected from protest—a veritable slippery slope.

To those who say that the slippery slope argument is scaremongering, we were reminded in Liberty’s briefing for this Bill that protest banning orders were based, practically word for word, on football banning orders. I remember speaking against football banning orders and warning then that they set a precedent. I was told, “Oh, no; they are aimed at football hooligans only”. Well, guess what?

To conclude, I am very conscious that this clause was voted in with 297 votes for and 110 against in the other place and was supported by MPs across all parties, and I am always concerned about the democratic dilemma of unelected Lords challenging what happens in the other place. But these are probing amendments to at least ask to strengthen the burden of proof required to establish offences, to limit the range of acts potentially criminalised, to bring some proportionality to sentencing and to try to limit the illiberal, if unintended, consequences of what is undoubtedly a well-intentioned clause. I hope that when the Bill returns to the Commons, we at least give it a chance to think again.

I finish with Liberty’s comments in 2020, which I think are apt:

“Interference with protest rights should also be kept to a minimum. Liberty’s view is that legislation should only go as far as necessary to enable people to access abortion services safely.”

That is exactly right. The problem with Clause 9 is that it is redundant on this basis because safe access to abortion services is not threatened by people gathering outside.