The limits of protest and free speech
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Steve Hynes discusses the controversy surrounding anti-abortion protests outside an abortion clinic in west London and its possible implications for human rights law.
Ealing Council has publicly committed to finding ways to stop or curtail these protests, but it has set itself a knotty legal problem.
Abortion was legalised in Great Britain 50 years ago, but there remain a number of groups vociferously opposed to the medical procedure under any circumstances. A campaign against anti-abortion groups holding protests outside a clinic in the west London borough of Ealing raises questions around the limits to the right to protest and free speech.
Marie Stopes is a charity that provides contraceptive advice and safe abortion services. It runs a clinic in the centre of Ealing that has been the focus of anti-abortion protests for over 20 years. The groups describe their protests as ‘prayer vigils’. Some of their tactics are emotive, for example, displaying pictures that purport to be aborted foetuses and approaching women entering the clinic to give them leaflets and advice on ‘alternatives to abortion’.
Council support for action
Two years ago, a campaign was founded by Ealing residents opposed to the anti-abortion groups’ activities. Sister Supporter is lobbying for the public space outside the clinic ‘to be free from intimidation and harassment’. It is calling on Ealing Council to consider a public spaces protection order (PSPO) to prevent the demonstrations. The council agreed a motion at its meeting last month that committed it ‘to fully explore every possible option’ and use ‘all necessary resources’ to prevent protesters ‘intimidating and harassing women’ outside the clinic.
At the meeting, all the speeches were in favour of the motion, which enjoyed cross-party support from Labour (the controlling group), the Conservatives (the main opposition party) and the Liberal Democrats. Only two councillors out of the 61 present abstained in the vote, while the rest voted for the motion. The lack of debate in the council on the issue, we’d argue, reflects a consensus view, even among many people opposed to abortion, that protests outside abortion clinics are inappropriate (one Catholic councillor – the Catholic church opposes abortions in all circumstances – argued at the council meeting that at her church people held vigils there rather than outside the clinic).
Evidence of harassment
To give force to its campaign, Sister Supporter has produced a dossier of evidence1See Sister Supporter Evidence Pack. including photographs and statements from patients and staff from the clinic, as well as local residents. In extracts of a log kept by the Marie Stopes clinic, patients accused anti-abortion activists of blocking their path to the clinic and making emotionally-charged statements to women entering the clinic such as ‘don’t do it’. In an incident recorded in the log in April, a patient was described as ‘tearful’ after being called ‘a murderer’ by one of the activists. Ealing Council is also collecting evidence of alleged harassment by the anti-abortion protesters.
The clinic is situated in a suburban area near Ealing town centre. Many local residents take exception to the protesters, who are outside the clinic six days a week. For example, they have objected to their children being exposed to the graphic images displayed while walking to school. Some of the residents have also been distressed by the harassment of women using the clinic, who they say are often reduced to tears by the vigil/protesters.
Legal Action visited the clinic early on a Saturday morning last month. Two anti- abortion protesters were sitting behind placards (see photo) on a grass verge immediately outside the clinic entrance. A third protester was at the clinic entrance with leaflets. The two women and one man outside the entrance declined to comment, saying they wished to be left ‘in peace to pray’.
In the course of the research for this article, Legal Action spoke to other anti- abortion activists. They deny harassment and say they only speak to women who approach them. They also believe that the images they use in their campaigning are ‘informative’. In the course of one conversation, Legal Action put it to one protester that it might be viewed as ‘unacceptable’ to give a plastic model of a foetus to a woman as she entered the clinic for a legal medical procedure (Sister Supporter included this incident in its dossier). The male campaigner said that while this was not something he did, it was acceptable as part of their efforts to persuade women not to go ahead with an abortion.
Speaking to both sides on this issue, it is apparent that there is little or no common ground. The anti-abortion campaigners are adamant that their activities do not amount to harassment. In a telephone conversation with Legal Action, they pointed out that in 23 years of holding the vigils ‘no one has been arrested or charged with a criminal offence’. The vote by Ealing Council, though, is one clear indicator of how out of step with mainstream political and public opinion they are. The question is: should (or, perhaps more pointedly, can) the law be used to stop or restrict their protest?
Placards outside the Marie Stopes clinic in Ealing
Placards outside the Marie Stopes clinic in Ealing
Establishing a safe zone
In some Australian states, the problem of such protests is dealt with by the establishment of safe zones around clinics. For Ealing and other areas, a mediated agreement around a safe zone where no activity from any campaigners is allowed could be a solution, but not one to which the anti-abortion campaigners seem likely to agree.
In November 2015, the Australian state of Victoria passed a law that established safe zones of 150 metres around clinics providing abortion services. The zones are intended to ‘protect the safety and well-being and respect the privacy and dignity of’ the patients, staff and others who enter the clinics. People breaking this law can be prosecuted and jailed for up to a year.
Use of PSPOs and human rights
The PSPO that Sister Supporter proposes would work in a similar way. The legislation permitting PSPOs was passed three years ago (Anti-social Behaviour, Crime and Policing Act 2014 ss59–61). They are used to criminalise otherwise legal activity in a defined public area. Their use, though, is highly controversial. Liberty, the human rights charity, campaigns against them as it believes the powers are ‘too widely drawn’. The charity is particularly concerned about the use of the orders to prevent begging and rough sleeping. It argues that people are being victimised for being poor: ‘Local authorities should focus on finding ways to help the most vulnerable – not criminalise them and slap them with fines they can’t possibly pay.’
Josie Appleton, director of the Manifesto Club, which has been campaigning against PSPOs, says: ‘In cases where women are being grabbed, their paths obstructed, or there is trespassing on clinic property, the protesters are committing public order offences and should be prosecuted.’ However, she believes that ‘there should not be a prohibition on a peaceful protest on a public street’ as she fears that ‘companies or organisations of all kinds could try to create “buffer zones” to protect themselves from criticism’. While the ‘protesters are out of touch with the majority view in this country’, she does ‘not think they should be prevented from expressing their view’.
In Australia, there is no constitutional right to free speech, while in the UK articles 10 and 11 of Human Rights Act 1998 (HRA) Sch 1 protect freedom of expression and the right to lawful assembly and protest. The use of a PSPO against the anti-abortion activists could lead to a legal challenge under the HRA.
The ECtHR has tended to favour free speech in cases brought under article 10 'except where there is evidence of harm to others'.
According to a human rights lawyer who Legal Action spoke to while researching this article, the European Court of Human Rights has tended to favour free speech in cases brought under article 10 ‘except where there is evidence of harm to others’. For example, in Annen v Germany App No 3690/10, 26 November 2015, the court found in favour of an anti-abortion campaigner who was distributing leaflets outside a clinic. The facts of the case are different, though, as the leaflets in question did not include the sort of imagery used by some of the Ealing campaigners. Also, if the evidence collected by Sister Supporter about the distress caused to women using the clinic stands up to scrutiny, this could persuade a court that the anti-abortion activists’ rights under articles 10 and 11 are outweighed by those of the users of the clinic, most probably under article 8 (the right to a private and family life).
Other possible remedies
It might be possible to argue that the images used by the protesters are obscene, but previous attempts in the UK to ban the use of such images on obscenity grounds have failed (see Tania Branigan, ‘CPS drops case against anti-abortion protester’, Guardian, 10 July 2004). Local authorities do have powers to divert or extinguish rights of way that could be used for paths outside abortion clinics, but such moves would almost certainly lead to opponents challenging this under human rights and highways legislation.
Ealing Council has publicly committed to finding ways to stop or curtail these protests, but it has set itself a knotty legal problem. Lawyers and many human rights campaigners will be watching with interest to see if the council goes down the PSPO route. If it does, and it is subject to a battle in the courts, any resulting judgment will have to tackle head-on the issue of balancing the rights to protest and freedom of speech against those of the patients, staff and residents. Perhaps the best outcome would be that any restriction of these rights would apply only to the very specific set of circumstances around anti-abortion protests outside medical facilities offering the procedure.

About the author(s)

Steve Hynes
Steve Hynes is director of LAG. He is a well-known commentator in the written and broadcast media on legal aid and access to justice issues.