Public Order Bill

Lord Etherton Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[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.