May 21 2024
Close this search box.

Using bad law for good – is it ever ok?

Using bad law for good – is it ever ok?

Ealing, the quiet, leafy, London suburb, once known for its comedies and film studios, became the first council to impose a Public Spaces Protection Order (PSPO) to protect the area around the local Marie Stopes abortion clinic. Since the 10 April 2018, when the order was made, it has fought off challenges through the High Court, the Court of Appeal, and just last week, the Supreme Court.

For more than 23 years there had been a ‘vigil’ outside the clinic on Mattock Lane, Ealing. Although, to use the word ‘vigil’ is misleading, as the activities were varied; usually a large group would gather on the grassy area in front of the clinic to pray and chant, while two paid employees of the Christian group, the Good Council Network, would stand outside the entrance – known as ‘pavement counsellors’ – it was their job to interact with women going in. On most Friday’s other pro-life groups would line up along the hedge of the clinic with large signs, depicting graphic foetal images, and baring slogans, such as: ‘Abortion: One dead, one wounded’; ‘Give your baby a present – a birthday’.

The pavement counsellors held plastic rosary beads in two colours – pink and blue. They asked women the sex of their baby and offered the colour of stereotypical response. The words uttered by the pavement counsellors depended on whether the women were entering or exiting the clinic – persuasion and guilt upon arrival: ‘It’s not too late to change your mind’; ‘If you pray you won’t end up back here, mum; and shame upon leaving: ‘Murderer’, ‘God will punish you’.

How do I know this?

For almost two years, I spent pretty much every Saturday morning outside the clinic. I’d heard of a grass roots campaign started by Anna Veglio-White and her sister Eve to end the harassment. They named the campaign ‘Sister Supporter. I, along with other local residents, became one of the Sisters. The group is an eclectic mix of local people who came together to find a way to stop the harassment of women at their local clinic. It is an amazing group of talented people, and proof that anthropologist, Margaret Mead, was right when she said: ‘Never doubt that a small group of thoughtful, committed citizens can change the world.’

On one of the Saturdays a seed of an idea came from Dr Pam Lowe, an academic from Aston University, who was visiting. She knew I was a lawyer and suggested we explore the possibility of using a PSPO to protect the area around the clinic. I was sceptical. My field is housing, so I was aware of PSPO’s, and wasn’t a fan. They are primarily used to deal with street drinking and homelessness. They push the problem elsewhere without dealing with the cause. But for harassment of women outside abortion clinics – protecting the space – could that work?

It did. Here’s how

You’ll find the law on PSPOs in section 59 of the Anti-Social Behaviour Crime and Policing Act 2014. Essentially, the behaviour must have, or likely to have, a detrimental effect on the quality of life of those in locality, is persistent and unreasonable. The duty lies with the local authority. But how to get them to act?

Sister Supporter started a petition. We had learnt that the council would debate a local issue if it received at least 1,500 signatures – we got 3,593. Local people wanted this vigil to end, they told us this often, while we were gathering evidence through the rain, sunshine and snow. We presented the petition to the council. They agreed to investigate. The statutory consultation attracted 2,181 online survey responses, with more than a thousand people, mostly local, providing detailed evidence of witnessing behaviour that was intimidating, harassing or shaming to the women using the clinic. It was compelling.

Witness statements from women who had used the clinic were read in court. One described how she had recurrent nightmares of a man (a pavement counsellor) chasing her down the street while she searched for her baby. Another woman told a male pavement counsellor he was upsetting her, to which he replied: ‘Good, then I will have done my job.’ Other women said, ‘It made me feel guilty, like I was a killer.’

It was as a result of this wide consultation that Ealing Council decided to go ahead with the PSPO – a 100-meter protected space along Mattock Lane, otherwise known as the ‘safe zone’. It was a brave decision. At the edge of the safe zone the council provided a ‘designated area’ for the anti-choice groups to gather, with restrictions on the number of people allowed in the designated area, and the size and type of material displayed.

In making this decision Ealing Council had to balance competing rights enshrined within the Human Rights Act 1998. All of which deserve equal respect – but are not absolute rights.

The right to respect for a private and family life is the central value protected by Article 8. In choosing to visit a clinic, a woman is exercising a fundamental right to personal autonomy. It is hard to imagine a more intensely private decision. Is it right then that she can be stopped at the entrance of the clinic, to be publicly identified in this way, to try to be persuaded at the door, from the decision she has already made?

Everyone has the right to freedom of thought, conscience and religion. When groups gather outside a clinic to pray and chant, they are exercising their Article 9 rights. Is it fair to prevent them from doing so?

The same question is posed in relation to the freedom given of expression, outlined in Article 10, and the freedom of assembly and association in Article 11. When is it acceptable for a person to be denied the right to assemble, to protest, to speak out?

As a campaigner I fully support the right to protest and freedom of expression. I’m not religious, but I support that right too. The appeals to the High Court, the Court of Appeal and the Supreme Court were on the basis that insufficient weight was given to the Appellant’s Article 9, 10 and 11 rights. The group Liberty intervened in the Court of Appeal. Their reason for doing so was because of their concern at the ‘overbroad nature of the PSPO’ and ‘the potential for misuse of PSPO’s to curtail protest rights’. The Appellants adopted Liberty’s arguments in full.

The case raised issues regarding the definition of protest – usually to bring about change – it targets powerful bodies and institutions. Was this really a protest? What was the primary purpose of the anti-choice groups being there? Were they there to inform and contribute to the wider public debate (as usual with a protest group) around abortion or were they there to target women of a certain age, in the locality of the clinic, who they thought were service users, to get them to change their mind?

There has been much talk lately of human rights. They are designed to be used as a shield not a sword, to protect the weak against the strong, the individual against the group. The activities of the anti-choice groups were causing extreme anxiety and distress at a time when women were at their most vulnerable. It was only right where the balance fell.

What now?

The PSPO is a temporary solution. It will end (unless renewed) after three years. Women will then, once again, have to run the gauntlet in Ealing to access legal health care. A long-term solution is needed – national buffer zones – so that protection around a clinic is not a postcode lottery. On the September 13 2018, Sajid Javid, the then Home Secretary, after a review of the evidence, refused to consider national buffer zones as a ‘proportional response; to the problem.

On March 11 2020 the Liberal Democrat MP for Richmond, Sarah Olney, tabled a Private Members bill in Parliament to prohibit anti-abortion protests within 150 meters of abortion clinics. She supported Richmond Council in introducing a PSPO in the Richmond area in 2019. More councils are looking to follow with PSPO’s, and Sister Supporter has grown to have satellite groups in Manchester and Bournemouth, but it isn’t enough.

The reasons why a woman has an abortion are many and varied. Lady Hale said: ‘The starting point for any discussion of the legal issues has to be the right of all human beings, male and female, to decide what shall be done with our own bodies.’ It is vital that we protect the space around all clinics to ensure that those rights are real.

Join Sister Supporter (here), access the evidence pack (here) or get involved in the BPAS Back Off campaign (here).