Public space protection orders and abortion clinic “safe zones”

December 20, 2023

The Divisional Court has dismissed two conjoined challenges to a Public Spaces Protection Order (“PSPO”) made by Bournemouth, Christchurch and Poole Council (“BCPC”), which prohibits protests and vigils from taking place within a “safe zone” outside a BPAS clinic where abortions are performed. Kuljit Bhogal KC and Tara O’Leary analyse the ruling.

The challenges were brought as a statutory appeal under s.66 of the Anti-social Behaviour, Crime and Policing Act 2014 by one of the individual “pro-life” protesters affected by the PSPO, and as a judicial review by Christian Concern in its capacity as an organisation which campaigns on pro-life issues, some of whose members lived near the clinic.

Warby LJ and Thornton J unanimously dismissed a plethora of arguments raised by the claimants. In particular:

It can be lawful for a PSPO to prohibit activities which are peaceful and otherwise lawful, or activities which engage common law or Convention rights including freedoms of religion, expression and assembly. Parliament empowered local authorities to prohibit activities which merely have a “detrimental effect on … quality of life”. Whilst that requires something more than “de minimis conduct or trivial annoyances” [37], the Court otherwise re-affirmed that local authorities are the primary decision-makers [38, 44].
BCPC’s consultation exercise was not flawed, nor did it lack an adequate evidential basis to justify the restrictions in the PSPO. It was irrelevant that BCPC’s evidential findings and conclusions were not analysed at great length in a single report: what matters is the substance of decision-making, not its form [39-40].
BCPC also complied adequately with the duty to consult the local Chief Constable of the Police as required by s.72(4) of the 2014 Act. All that a local authority must do is bring the consultation to the Chief Constable’s attention. It is not unlawful to make a PSPO merely because the Chief Constable has not replied personally or at all [80].
The PSPO did not unlawfully attempt to prohibit behaviours in private spaces. Although the “safe zone” was defined by a map which covered a broad area, including private homes, it was sufficiently clear from the wording that the Order only applied within certain identified roads and streets. Although the map could have been clearer, “drafting imperfections” did not justify quashing the PSPO [51].
The PSPO was not unlawful merely because the “safe zone” did not include a “designated area” where unrestricted protests could take place near the clinic. The layout of the area around the clinic was a relevant factor. BCPC had properly considered if there was a less intrusive option available and reached a rational decision there was not [53].
It is lawful to include dispersal powers in a PSPO: police or local authority officers may require a person to leave the “safe zone” if they are suspected of breaching the Order [69-70].
Suggestions that the PSPO directly discriminated against Christians contrary to s.13 of the Equality Act 2010 were “unarguable”. It was “impossible” to accept that activities were prohibited purely because they were “characteristically Christian”. Rather, the PSPO “targeted the behaviour not the individuals” and prohibited activities by people of all faiths and none [60].
The court reaffirmed that women accessing health care at abortion clinics enjoy a reasonable expectation of privacy which is protected by Article 8 [67]. That right imposes a corresponding obligation on the state to facilitate the exercise of the right to access abortions and to prohibit harm outside abortion clinics, as confirmed by the Supreme Court in In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32 [115]. In obiter remarks, the court dismissed as “artificial” the claimants’ suggestion that these rights are less deserving of protection because in England abortion is still criminalised subject to certain exceptions [45].
The court dismissed the claimants’ suggestion that the PSPO unlawfully breached women’s Article 8 and 10 rights by interfering with their right to receive information about abortion (i.e. information in leaflets and signage supplied by pro-life activists). Any such interference was extremely limited and amply justified. Moreover the court noted that pro-life volunteers are not trained medically or in counselling, whereas the clinic itself was under a legal duty to provide impartial and non-directive counselling [64-66].

Finally, the court declined to rule on arguments by BCPC that s.66 of the 2014 Act – which allows a defined category of “interested persons” to bring statutory appeals against PSPOs within a 6-week limitation period – ousts the possibility of other persons bringing claims in judicial review [73]. It remains to be determined whether organisations (like Christian Concern, acting in a representative capacity) have standing to challenge PSPOs which do not directly affect them or their members.

A copy of the judgments are available here and here.

This is the second challenge to an abortion clinic PSPO which has been dismissed by the courts, following the decisions of the High Court [2018] EWHC 1667 (Admin) and Court of Appeal [2019] EWCA Civ 1490 in Dulgheriu & Orthova v LB Ealing.

BCPC was represented by Kuljit Bhogal KC and Tara O’Leary of Cornerstone Barristers, who also successfully represented Ealing LBC in Dulgheriu.