High Court upholds introduction of Public Spaces Protection Order in “safe zone” around abortion clinic

The introduction of a Public Spaces Protection Order (PSPO) in the vicinity of a clinic in Bournemouth which provides abortion services was lawful, the High Court has ruled.

In Tossici-Bolt v Bournemouth & Poole [2023] EWHC 3229, the claimants challenged the validity of the PSPO made by Bournemouth, Christchurch and Poole Council in October 2022, which designates an area around the clinic as a “safe zone”, within which it is prohibited to engage in protest related to abortion services and other specified activities.

The main issues considered were whether the order was unlawful because it went beyond the scope of the council’s statutory powers to make PSPOs, or because it involved “unjustified interference with individual rights and freedoms”, and was therefore a breach of the council’s duties under s 6 of the Human Rights Act 1998, said Lord Justice Warby and Mrs Justice Thornton.

Looking at the freedoms of conscience and religion, expression and assembly guaranteed by Articles 9, 10 and 11 of the European Convention on Human Rights (the Convention), the judges noted that it is “inherently likely” that some PSPOs will interfere with the exercise of the rights guaranteed by Articles 10 and 11 of the Convention.

They said: “In the present case, as we shall explain, the aims of the order were to protect the rights of women who are on their way to or from the clinic as well as their family and supporters and staff at the clinic; and some of the restrictions and requirements of the order are expressly aimed at forms of expression with religious connotations.”

The judges noted the local authority and the court may also have to consider the right to respect for private and family life guaranteed by Article 8 of the Convention and the right to freedom of thought, conscience and religion guaranteed by Article 9.

“What is worth pointing out is that these are all qualified rights. In each case an interference with the right can be justified as “necessary in a democratic society … for the protection of the rights … of others.”

“So when, as here, a PSPO interferes with the Convention rights of the protestors (Articles 9, 10 and 11) it is necessary to consider whether that test is satisfied. The test can in principle be satisfied by a need to protect the Article 8 private and family life rights of clinic visitors and staff”, said the judges.

Turning to the claims, the judges noted that the first claimant leads the Bournemouth branch of “40 days for Life” which describes itself as a Christian organisation that for many years has arranged for volunteers to pray for, and offer help to, women outside the clinic.

The claimant submitted that the order was unlawful on five grounds:

1. The order seeks to prohibit peaceful and lawful behaviour which falls short of meeting the threshold test for a PSPO in s 59(2) of the 2014 Act; alternatively the council had no proper evidential basis for concluding that the first claimant’s behaviour or that of the volunteers fell within s 59 and gave no adequate reasons.
2. Alternatively, the prohibitions are unreasonably extensive, including many that cannot be considered relevant to the allegedly detrimental activities the order is designed to prevent. One of the first claimant’s contentions under this ground is that the safe zone extends to private land and thereby exceeds what the statute permits.
3. The restrictions interfere with the rights of the first claimant under Articles 9, 10 and 11 of the Convention to an extent that is neither necessary nor proportionate in pursuit of any legitimate aim and in a way that discriminates on religious grounds contrary to Article 14.
4. The restrictions similarly interfere unjustifiably with the rights of persons unknown under Articles 8, 9, 10 and 11 read by themselves and with Article 14.
5. The 2014 Act does not permit the council to confer the free-standing powers of dispersal contained in paragraph 4(g) of the order.

The second claimant, Christian Concern, brought a claim for judicial review of the decision to implement the PSPO. Three grounds of review were identified, namely that the order was non-compliant with the 2014 Act in that (1) it purported to restrict otherwise lawful activities conducted on private land; (2) the power of dispersal was unauthorised by the 2014 Act and unlawful; and (3) there was a failure to consult the Chief Constable in accordance with s 72 of the 2014 Act.

The High Court concluded that when making the order, the council lawfully followed the democratic and consultative procedures prescribed by the 2014 Act.

Lord Justice Warby and Mrs Justice Thornton said: “The decision-maker was entitled to conclude that the threshold conditions for making an order were satisfied. The detailed provisions of the order are consistent with s 59(5) of the 2014 Act and with the council’s duty under s 6 of the HRA.

“To the extent that the order interferes with the human rights of the first claimant and those of non-parties on which she has relied in support of her claim the interference is justified by the legitimate aim of protecting the rights of women attending the clinic, their associates and the staff.”

Both claims were dismissed.

In an amendment judgment, Lord Justice Warby and Mrs Justice Thornton refused the second claimant’s application for permission to add an additional ground to the judicial review claim.

The ground was that the order was made without lawful authority because it was not passed according to the council’s constitution. It was instead decided upon unilaterally by a single councillor.

The judges said: “We accept the Council’s submission that it is prejudiced by the sequence of events. Not only was a new and complex ground of challenge raised inexplicably late by the second claimant. Points of substance were then raised in a skeleton argument served by the first claimant the day before the hearing about the Council’s constitution and the division of responsibilities amongst Councillors, to which the Council could not respond in time for the hearing.

“Those points were not relevant to any ground of claim which the party that filed the skeleton argument had advanced, or sought to advance. The fact that the point may be relevant to other proceedings in respect of the Order makes it all the more necessary that the arguments are set before the Court in an orderly and timely fashion.”

A BCP Council Spokesperson said: “We welcome the High Court judgment which upholds the introduction of a Public Spaces Protection Order at Ophir Road in Bournemouth. 

“The terms of the PSPO remain in place and any alleged breaches of this order will continue to be investigated.”

Lottie Winson