Written evidence from MSI Reproductive Choices UK (FOE0175)

RE: Is there a need to review the wording and application of Public Space Protection Order (PSPO) legislation?

1. About MSI Reproductive Choices UK

1.1 MSI Reproductive Choices (formerly Marie Stopes International) is a global organisation delivering reproductive health services across 37 countries. MSI Reproductive Choices UK (MSI UK) has delivered reproductive healthcare for over 40 years. We provide abortion care, vasectomy, and other services across England.

Our evidence: a summary

2.1 MSI UK opposes a review of the wording or application of the Public Space Protection Order (PSPO) legislation.

2.2 Specifically, we oppose any review which would make it more difficult for local authorities to use PSPOs to protect abortion access.

2.3 The right to access an abortion in confidence, without fear of harassment, alarm, or distress falls under the right to privacy and family life under Article 8 of the European Convention on Human Rights (ECHR). This has been upheld by the High Court and the Court of Appeal.

2.4 Article 8 carries positive obligations for governments to actively protect Article 8 rights, not just negative obligations to refrain from infringing upon them. 

2.5 The rights referenced by the anti-abortion groups in this context fall under Articles 9, 10, and 11 of the ECHR. These are qualified rights, and there is precedent and commonly recognised justification for “interfering” with these rights when balanced against the public interest, particularly when balanced against the Article 8 right to privacy.

2.6 The PSPOs do not restrict anti-choice activity on grounds of personal or religious belief; they apply equally to pro-choice groups.

2.7 Existing PSPO legislation is the only tool to date which has been effective in protecting this Article 8 right. Alternative approaches have been considered and/or tried, but none have proved workable.

2.8 Therefore, any changes to the existing PSPO legislation which create additional barriers for local authorities in using PSPOs to protect this right would be to facilitate an infringement upon the Article 8 right to access abortion safely and in private.

3. Our evidence

3.1 Background: why PSPOs have been needed to protect abortion access

3.1.1 PSPOs have been used effectively by Ealing, Richmond, and Manchester local authorities to create a “buffer zone” or a “safe access zone” around abortion clinics.

3.1.2 PSPOs are needed because behaviours from anti-abortion groups outside clinics have infringed the right to access an abortion safe from fear of harassment, alarm, or distress, and in confidence. Examples of these behaviours include, but are not limited to:

• Shouting comments such as “find another job,” “murderer” and “baby-killer”
• Calling women “mummy” or “mum” when they enter or leave the clinic
• Disseminating medical misinformation
• Following people up the street as they leave the clinic
• Displaying religious images or handing out pink and blue rosaries
• Barricading the door to restrict entry 
• Salting the floor (to ‘cleanse’), spraying holy water, or throwing red liquid
• Offering to give money, food, or shelter to clients if they agree not to have an abortion
• Spitting
• Praying and singing
• Staring in an unnerving or intimidating manner
• Taking photos or filming
• Using visual aids (e.g. plastic foetus models).

3.1.3 These behaviours have been widely documented[1], and evidence has been presented as part of public consultations on the introduction or renewal of local PSPOs. These submissions include detailed testimony of harassment, and images of medical misinformation distributed outside some clinics. Extensive testimony from those impacted (overwhelmingly women, and sometimes young girls, often very vulnerable) shows that the behaviour can cause alarm and distress, and that it infringes upon a reasonable expectation of privacy when accessing medical care.

3.1.4 The anti-abortion activity outside clinics has a direct impact on access, with clinical implications. MSI UK records show that on days with high activity outside clinics, appointments are rebooked specifically to avoid harassment. This delay results in treatment at a higher gestation, reducing treatment choices. Abortion is a safe procedure, but the earlier the gestation, the safer the abortion. We conclude, therefore, that these behaviours not only cause alarm and distress, but also create access barriers with a clinical impact.

3.1.5 Alternative means of protecting this Article 8 right have been considered, and in some cases tried. PSPOs are the only tool that has been effective. Protection from Harassment Act 1997, Anti-social Behaviour, Crime and Policing Act 2014, and the Criminal Justice and Public Order Act 1994 have all been considered as mechanisms to protect abortion access but these options do not offer a long-term solution, and in some cases require formal complaints to be made, which most people affected do not wish to make, usually for privacy reasons.

4. The right to privacy and family life and the right to freedom of expression

4.1 The European Court of Human Rights has ruled, as in the case of A, B and C v. Ireland[2], that the right to access abortion does fall under the right to privacy and family life under Article 8. Indeed, as was ruled in the case of P. and S. v. Poland[3], the right to family life protects the right to become a parent and the right not to become a parent. Both the High Court[4] and the Court of Appeal[5] upheld that PSPOs are the only effective way to uphold the Article 8 right to access abortion in confidence, without fear of harassment, alarm, or distress.

4.2 Article 8 establishes positive obligations for governments (such as an obligation to ensure hospitals take appropriate measures to protect patients) not merely negative obligations not to infringe upon Article 8 rights themselves. Current PSPO legislation allows local authorities to ensure that everyone seeking an abortion can do so safe from fear of harassment, alarm, or distress. Should legislation limit the ability of local authorities to do this, it would create barriers in meeting positive obligations to keep people safe when accessing medical care.

4.3 The ECHR rights referenced by anti-abortion groups in this context fall under Articles 9, 10, and 11. These are qualified rights, and there is precedent and indeed widely recognised justification for “interfering” with these rights when balanced against the public interest, especially against the Article 8 right to privacy.

4.4 The PSPOs do not restrict anti-choice activity on grounds of personal or religious belief; they apply equally to pro-choice groups. For example, in Ealing, the PSPO applies equally to Good Counsel Network, the Friday Group, Ealing Pro-Life Group, 40 Days for Life, God’s Precious Helpers and to the pro-choice group Sister Supporter which protects those entering the clinic.

5. Conclusion

5.1 MSI UK opposes any amendment or review of current PSPO legislation, particularly any amendment which would make it more difficult for local authorities to use PSPOs to protect abortion access.

5.2 It has been ruled by the High Court and the Court of Appeal that PSPOs are needed to protect the Article 8 right to access abortion safe from fear or harassment, alarm, or distress, and in confidence.

5.3 Article 8 carries positive obligations for governments as well as negative obligations. Protecting access to safe medical care is an area where governments must actively uphold this right, not merely refrain from infringing upon it themselves.

5.4 There is justification and legal precedent for “interfering” with qualified rights under Articles 9, 10, and 11 of the ECHR when balanced against the public interest, especially against the Article 8 right to privacy.

5.5 The PSPOs do not restrict anti-choice activity on grounds of personal belief; they apply equally to pro-choice groups.

5.6 Existing PSPO legislation is the only mechanism to date which has been effective in protecting this Article 8 right. Alternative approaches have been considered and/or tried, but none have proved workable.

5.7 Therefore, MSI UK concludes that any changes to existing PSPO legislation which would create barriers for local authorities in using PSPOs to protect Article 8 rights (i.e. the right to access abortion safe from fear of harassment, alarm, or distress, and in confidence), would be to facilitate an infringement upon those Article 8 rights.

29/01/2021