Public Order Bill

Bernard Jenkin Excerpts

Report stage
Tuesday 18th October 2022 Commons Chamber

“What is freedom of expression? Without the freedom to offend, it ceases to exist.”

[Sir Bernard Jenkin (Harwich and North Essex) (Con)]

I am grateful to have the opportunity to support new clause 11, which was tabled by the hon. Member for Ealing Central and Acton (Dr Huq). She has got into a bit of a scrape because she said something silly, but those of us who know her know that she is an extremely committed parliamentarian and very public spirited, and I hope that order will be restored in that department as soon as possible.

I also congratulate the hon. Member for Walthamstow (Stella Creasy) on new clause 11 and I thank my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) for supporting it. I note that SNP Members support the new clause, although I am not sure whether they will vote on it—they might decide that it is an English measure—but it is interesting that similar measures are being considered in Scotland.

I am grateful to the Minister for Crime, Policing and Fire, my hon. Friend the Member for Horsham (Jeremy Quin), who kindly saw me at short notice yesterday about this matter. The Government may well oppose this new clause. I hope they do not, but I know they are seized of the issue and are giving it consideration. I will listen very carefully to what he has to say about it later.

“Clinic harassment” is the term used to describe the presence outside abortion clinics of groups who seek to dissuade and deter women from accessing healthcare that is their right under our law. Many people would call them protests, but mere protest is not the purpose of the activity and the groups who organise them do not call them protests. It is not about politics or campaigning; it is about stopping individual women from accessing their legal rights. New clause 11 would simply introduce a statutory buffer zone around any location where abortion services or advice are provided, making it illegal to carry out such activities as those eloquently described by the hon. Member for Walthamstow.

We are told that the scale of the problem is small and does not require a national response. That is false. Every year, around 100,000 women are treated by a clinic targeted by these groups. In the last three weeks alone, at least 15 clinics across the country have had people outside, including clinics based in hospitals, GP surgeries and in residential areas. That has impacted hundreds of women’s care and psychological wellbeing.

We are also told that the police and councils already have powers to restrict harmful protests. If that is true, why are they still happening? The fact is that abortion providers have proactively tried to use all the laws suggested by the Home Office to stem the problem, but even where individual protesters and groups have been dealt with by the courts and local authorities, the presence outside clinics has not stopped.

Let us be absolutely clear: we are not debating the principle of whether these so-called protests should be banned; they already are banned in certain places, and the principle of that has been supported by the House. We are just asking whether the existing statutory arrangements—the public spaces protection orders—used by councils to introduce buffer zones around individual clinics are effective. Only five out of 50 targeted clinics are protected.

There are three issues relating to PSPOs: they create a random patchwork of protections, which is inadequate; they are expensive to introduce and very difficult to uphold in the courts; and crucially, they can be introduced only with evidence that harassment is taking place. I made this point to my hon. Friend the Minister last night, and it is a painful thing for him to have to accept, but it is the Government’s policy that women should be harassed outside abortion clinics before a PSPO can be issued. Can the House think of any other policy that requires women to be harassed before the Government or the local authority do something that is perfectly justified? That is an immoral basis for PSPOs.

[Jeremy Quin]

My hon. Friend makes a powerful point, as indeed he did yesterday evening. I was concerned and looked into the matter. The antisocial behaviour statutory guidance states that a PSPO can be made by a council if it is satisfied on reasonable grounds that the activity or behaviour carried out, or likely to be carried out, in a public space has had, or is likely to have, a detrimental impact. I hope that gives him some reassurance that if activity is anticipated and people are concerned that it may take place, there is a means whereby a PSPO may be taken out. He might not consider that a perfect scenario, but where an activity is foreseeable, action can be taken in advance.

[Sir Bernard Jenkin]

I say rather wryly to my hon. Friend, “Good try.” But it is not really adequate, is it? All our local authorities are under huge spending pressure and do not want to spend money on drafting orders and so on, so what local authority will be preoccupied with this problem unless there is a problem? The strength of the case for implementing a PSPO is supported by evidence of likelihood, which will only be evident if the activity has already happened. I am afraid that my hon. Friend the Minister has not really addressed the point, although I commend him for making a good attempt.

We are also told that these groups are only quietly praying and that there is no harassment involved. Well, the hon. Member for Walthamstow told us about what happens, and sometimes people attend in very large numbers.

My final comment on this may answer points that my hon. Friend the Minister will make later. I have been involved for years in discussions with the Home Office, and here I also thank my hon. Friend the Member for Louth and Horncastle (Victoria Atkins) for the assiduous attention she gave us as she wrestled with this problem, which I know has vexed her. Although she never persuaded the Government to accept a previous amendment, the sincerity of her engagement with us was wonderful, and I am grateful. So finally, we are also told that our amendment contravenes protesters’ human rights. Well, I note that the Chair of the Joint Committee on Human Rights, the hon. and learned Member for Edinburgh South West (Joanna Cherry), does not think that is the case—albeit that the Committee has not actually considered this amendment.

We have to recognise that rights have to be balanced, and the exercise of one person’s rights are very often to another person’s detriment. We have to strike a balance, and my argument is that new clause 11 strikes the right balance. The amendment would not stop people sharing their opinions about the vexed issue of abortion. It balances the rights of people who oppose abortion with the rights of women to access healthcare confidentially and free from harassment and intimidation. It does not ban protest; it simply moves it down the road to preserve the space immediately outside the clinic for women seeking care, and for nurses and doctors providing that care. In Committee, when asked about this directly by the Minister, rights groups did not oppose new clause 11. Canada, Australia, Spain, Ireland, Northern Ireland and Scotland all have comparable laws in place or are in the process of introducing them.

I need not detain the House any longer. If the House does not support this amendment tonight, the argument will carry on until an acceptable means of protecting women exercising their legal rights is found. I am grateful to the Government for allowing a free vote on the matter, which is right and proper in the circumstances.

[John McDonnell (Hayes and Harlington) (Lab)]

It is a privilege to follow the hon. Member for Harwich and North Essex (Sir Bernard Jenkin). I rise to support a range of amendments—amendments 1, 2, 11 and 12, new clauses 9, 11 and 13 to 16, and most of those that stand in the names of the hon. and learned Member for Edinburgh South West (Joanna Cherry) and the hon. Member for Glasgow North East (Anne McLaughlin). I commend my hon. Friend the Member for Walthamstow (Stella Creasy) for her continuing campaign on this issue, and the right hon. Member for Romsey and Southampton North (Caroline Nokes) for the eloquence with which she spoke on it.

I believe that we should consider carefully the implications of any piece of legislation for our constituents. We must ask ourselves who will be affected, and how? I will discuss specifically how the Bill will have a dramatic effect on my constituents. In my constituency there has been a 40-year campaign against Heathrow expansion, particularly against the third runway. According to the airport itself, 4,000 homes will be either demolished or rendered unliveable as a result of air and noise pollution. Ten thousand people will lose their homes. There is a history of peaceful protest against this by my constituents. Their protests have involved demonstrating noisily, linking arms, marching, sitting down to block the roads into Heathrow and blocking the tunnel into Heathrow. They have involved camping in the local field with Climate Camp, and yes, they have involved training in locking on, to ensure that if someone’s home is threatened with demolition, they can lock themselves to the home.

Yes, the existing law has been used against my constituents, and people have taken it on the chin. The existing law has proved to be effective in many ways in ensuring that people understand the law and know when they cross the limit of the law. I remind the House that there are also specific laws relating to airports.

This campaign demonstrated to me how the democratic process, both inside and outside Parliament, works effectively, because it was successful. It persuaded the Conservative party to change its policy, and the party’s then leader, Mr Cameron, to say:

“No ifs, no buts, no third runway.”

We were disappointed when he later caveated that, saying that the commitment would last for only one Parliament. Nevertheless, it demonstrated that peaceful demonstration in support of the campaign actually did change Government policy, and I believe that it reinforced people’s appreciation of our democratic system.

The threat of a third runway has not gone away. The new discussions taking place on various Benches mean that people are now planning a new wave of protests to protect their homes. In fact, it has gone beyond a nimby campaign, because it is now also about tackling the climate change emergency that is happening now.

--- Later in debate ---

[Fiona Bruce (Congleton) (Con)]

I rise to oppose new clause 11 on the basis of its grave implications—indeed, threats—to freedom of thought, conscience, speech, belief and assembly. Let us be clear: new clause 11 flies directly in the face of those freedoms. It has far wider implications than on abortion alone; it potentially criminalises even those who simply stand peaceably near abortion clinics, and who do so mainly on the basis of their faith-based beliefs. I believe that the clause contravenes human rights. Notably, for example, article 18 of the universal declaration of human rights states:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

The broad wording of new clause 11 is open to such wide interpretation, particularly the words “seeks to influence”, that it could well catch virtually any activity. The proposed criminalisation of influencing is imprecise, unclear and unpredictable in its effect and potential impact, which contravenes the basic principle of certainty of the rule of law. Certainty is vital so that citizens can tailor their behaviour and remain within the law’s boundaries. Could a social worker advising a confused teenager going to an abortion clinic be seen as influencing within the meaning of this clause and therefore be at risk of criminal liability? This new clause fails the test of certainty and should be rejected for that reason alone.

[Sir Bernard Jenkin]

I am grateful to my hon. Friend for giving way and I am listening carefully to what she is saying, which I know reflects beliefs of great sincerity. Does that mean, however, that she is against the existing law that allows local authorities to ban those same activities around abortion clinics, for example, on a selective basis? It seems to me that the House has already accepted that principle. If she cannot accept that principle, we really are on a different page.

[Fiona Bruce]

I have spoken against that principle on a number of occasions in this place and I will come on to explain why.

The wording of new clause 11 could even catch those who are quietly praying, but when did it become against the law in this country to pray? Unfortunately, five councils have now defined protest as including the word “prayer”. During court proceedings, that has even been confirmed to include silent prayer. That is a grave development that we in this House, more than anyone, must stand against. Staggeringly, it would effectively mean criminalising the affairs going on within the privacy of an individual’s mind. Yet freedom of thought is an absolute, unqualified right. As the Minister for the Americas and the Overseas Territories said earlier today in response to the urgent question, peaceful protest is a “fundamental part” of UK society.

Whatever our individual views on abortion, we must stand against new clause 11. Otherwise, we risk opening the door to discrimination even more widely. Why not have buffer zones around political conferences? A young Hongkonger told me yesterday that when she attended the recent Conservative party conference, she was “scared” of accessing the conference centre because of the aggressive behaviour of political opponents around it, yet there is no suggestion of having buffer zones there, and nor should there be. As MPs, we would be aghast if we risked a fine and imprisonment simply for handing out a campaign leaflet containing our political views on the street and seeking to influence others at election time. No: new clause 11 is specifically targeted at those with faith-based views and we should be equally aghast at it.

Of course, harassment or intimidation around abortion clinics—or anywhere—has to be addressed, although in more than a quarter of a century of people quietly gathering around abortion clinics, there have been relatively few, if any, reports of that and there are already several pieces of legislation that could tackle it if needed. The Offences against the Person Act 1861, the Public Order Act 1986, the Protection from Harassment Act 1997, the Criminal Justice Act 1988 and the Anti-social Behaviour, Crime and Policing Act 2014, and the Police, Crime, Sentencing and Courts Act 2022, which was passed only this year, all provide sufficient powers to tackle harassment and intimidation. This addresses the point of my hon. Friend the Member for Harwich and North Essex (Sir Bernard Jenkin): rather than creating new and unnecessary laws, the police’s and our efforts should be on ensuring that they and the prosecution use the powers that they already have.

This new clause goes further and potentially criminalises peaceable gatherings. Indeed, looking at the wording of the new clause, it is perfectly possible to see an argument being made that just one person standing alone quietly near a clinic could be guilty of the criminal offence proposed in it. Widely or poorly drafted legislation, as here, can have serious unintended consequences, as we have seen in recent years. During the pandemic, Rosa Lalor, a 76-year-old grandmother, was arrested, prosecuted and charged for nothing less than praying and walking outside an abortion centre. It took over a year before Merseyside police force dropped the charges, noting that her actions were completely within the law. For her, however, the punishment was the process, despite being completely innocent of any wrongdoing.

Too often, in recent years, the mere expression of unpopular viewpoints has been interpreted, or rather misinterpreted, as automatically being abusive or harassing under the Public Order Act 1986, due to the broad discretionary powers the police have. We must stand against this. We have seen numerous examples of street preachers and others arrested for nothing more than peacefully expressing traditional views in public. When arrested and prosecuted, it is very rare for this to lead to conviction, but by the time they are vindicated the damage is done to the individual subjected to a prolonged criminal process, to the public’s confidence in policing and, indeed, to freedom of speech. Such miscarriages of justice have an abiding chilling effect, leading many—indeed, many thousands of people—across our country today to self-censor deeply-held views, which is a problem far more widespread than is currently recognised and that will no doubt be exacerbated by new clause 11.

--- Later in debate ---

[Jeremy Quin]

That would be a decision made by a court in very specific circumstances, and I do trust our courts to take appropriate action. They can only do so on the weight of evidence, and they are very used to taking these decisions. After all, there is a tried and tested process whereby injunctions can be sought and obtained to prevent a future harm. I do not think this is as radical as my hon. Friend is suggesting. However, I congratulate him on the points he made, even though I disagree with him, and also my hon. Friend the Member for Ruislip, Northwood and Pinner (David Simmonds) on his contribution to this point of the debate. I would love to prevail on my hon. Friend the Member for Broxbourne to withdraw his amendment, but I do not think that is going to happen, and I look forward to opposing it.

Turning to the hon. Member for Croydon Central (Sarah Jones), I spoke earlier in the debate about why we believe that injunctions are useful. We absolutely accept the point being made by the hon. Lady that they are appropriate when used properly, and that is why we have tabled our amendments. I think ours is a more competent and effective way of achieving our shared objectives.

On new clause 5, which seeks to define the meaning of “serious disruption” for the purposes of this Bill, I have to say that no two protests, nor the operational response required, are ever the same. Being too prescriptive risks the ability of the police to respond to fast-evolving protest tactics while also risking the exploitation of loopholes by those intent on causing as much disruption as possible. That is not to say that I dismiss the principle of this amendment. There is a balance to be struck between a definition that is broad and one that is prescriptive, so while I do not agree with the hon. Lady’s amendment, we will reflect further on its intent.

I turn now to perhaps the most vexed issue in today’s debate—namely, new clause 11, proposed by the hon. Member for Walthamstow (Stella Creasy). New clause 11 seeks to create 150-metre buffer zones outside abortion clinics in which all activity interfering with a person’s right to access abortion services would be prohibited. As the hon. Lady would accept, that is a blunt instrument. It is there to achieve an objective, but within those 150-metre buffer zones there could be houses and churches, and this would be a national decision covering the 150 metres around all clinics.

At the outset of the debate, I made it clear that, from the Government’s perspective, it is a free vote for members of our party. My good friend, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), said that this is a difficult issue to grapple with, and it is indeed difficult. However, I would like to make it clear that it is entirely possible to support totally a woman’s right to an abortion and to view protests outside abortion clinics as abhorrent while still believing that the current legislative framework provides an appropriate response.

[Sir Bernard Jenkin]

I think the Minister should now be persuaded, particularly as one of his predecessors, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), has now made it clear that she supports this amendment. It is time for the Government to say that we have to recognise that the present arrangements are not adequate, and we will be thinking about how to build on the arguments that have been presented in new clause 11. Just to rest on the status quo is not a sufficient response, however the Government vote today.

[Jeremy Quin]

I sympathise with the sentiment behind new clause 11. I hope we all agree that it is wholly unacceptable for women to feel harassed or intimidated when accessing abortion services. However, bearing in mind the size, scale and frequency of those protests, it is still our view that placing a nationwide blanket ban on protests outside all abortion clinics in England and Wales would be a blunt approach and disproportionate given the existing powers that can and should be used.