Official Report: Minutes of Evidence

The Acting Chairperson (Mr Newton): Clare, welcome to the meeting. We do not have a quorum. Obviously, no decisions can be made on your evidence today. The session will be reported by Hansard and a transcript published on the Committee's web page. I invite you to brief the Committee on the Abortion Services (Safe Access Zones) Bill and, in particular, the elements that are relevant to the Justice Committee.

Ms Clare Bailey (Northern Ireland Assembly): Thank you very much, Chair. I thank the Committee for asking me to speak about the Bill. I greatly appreciate the opportunity and look forward to any feedback that members might have.

Obviously, you will be aware that the Bill passed Second Stage with significant support. I am more than happy to give an overview of the Bill and then to take questions, if that is OK?

The Acting Chairperson (Mr Newton): OK.

Ms Bailey: First, I will address why the Bill is needed and what it seeks to do and then look at the balance of competing rights and the enforcement measures that it contains. Hopefully, that will not take too much of your time, and then there will be questions.

Currently, women face harassment and attempts to impede them as they try to gain access to medical treatments and services. That is happening regularly and more frequently outside reproductive and sexual health clinics, hospitals and charities that provide information, counselling and other services. The behaviours employed by those engaged in that activity cause distress, fear and upset. There is also a real risk of women and children being traumatised by the use of graphic imagery, particularly those who have suffered a miscarriage in the past.

I experienced that at first hand when I worked as a volunteer at the Marie Stopes clinic in Belfast. The fact that my services were needed as a client escort should signal the extent of the problem that women face when trying to access buildings. I have been spat at, assaulted, verbally abused, called a murderer and splashed with holy water. One young woman ran into oncoming traffic to get away from the protesters. There have been regular recordings made of people without consent, and that is used to threaten them. In my experience, I have heard people say that recordings will be sent to the PSNI for prosecution, that they are working for the BBC and it will be broadcast on the television tonight or that it will be uploaded onto social media.

Women have the basic right to access healthcare, in confidence, without that type of fear and intimidation. Staff also have the right to do their job without abuse or harassment. We would not accept that outside any other healthcare setting; we should not accept it in these instances either.

The 2018 'Report of the inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women' concluded that women and girls in Northern Ireland had experienced "grave and systematic violations" of their rights as a result of restrictive access to abortion. Among the specific articles of the convention that were found to have been violated were articles 10 and 12 for the failure to protect women from harassment by anti-abortion protesters when seeking sexual and reproductive healthcare services and information.

The Bill has been drafted in that context. The Bill seeks to give the Department of Health the power to create safe access zones around any hospital or clinic that provides terminations or information, advice or counselling related to abortion. Hopefully, that will prevent the type of activity that we see outside our hospitals every day. Such activity has acted as a further barrier to women accessing all sorts of family planning services and has caused distress and trauma to many people — even those just passing by who are not accessing services.

Hopefully, the Bill will ensure the right to access services in confidence. The Bill will also significantly reduce the risk to all service users, including staff and visitors to hospitals and clinics across Northern Ireland, from the impact of protesters' actions. The Bill will mean that those who continue to target women outside healthcare centres can face consequences for their actions. It will create a criminal offence, and they can be fined. The PSNI will also be able to remove people from the area.

The balancing of competing rights has to be looked at. It is not my intention and the Bill is not intended to remove anyone's right to free assembly, but there is a limitation on that right. It is about limiting a person's ability to interfere with someone who is trying to access lawful medical services in confidence. That does not represent an undue restriction on our existing rights for speech, protest or assembly. People have every right to campaign for causes, and there are plenty of opportunities to continue to do that in other locations without negative impacts. However, the space immediately outside a hospital or clinic should not be the space for that to happen.

Women who are accessing pregnancy advice and abortion services are not seeking a debate. They are merely trying to make their personal decisions about their reproductive choices, and they should be free to do that without fear of intimidation or harassment. Indeed, the Committee on the Elimination of Discrimination against Women (CEDAW) inquiry found that the UK's failure to protect women from harassment amounted to a breach of their article 10 and article 12 rights, as I mentioned.

How can it be enforced? The enforcement measures in the Bill will give the police the ability to enforce the legislation if enacted. It will provide clarity to officers about what is and is not acceptable behaviour. At the moment, the police are regularly called to deal with issues arising outside some hospitals and clinics, but they are rarely able to take any action, because there are so many grey areas in the current law. Their hands are often tied, even when they believe that women are being harassed when accessing healthcare.

I have included a provision for unintended criminalisation. It is not my intention for the Bill to criminalise people unintentionally. The Bill is concerned with regulating only a certain type of harmful behaviour that is directly and indiscriminately targeting women who are going into buildings that provide — or that those people believe to be providing — terminations or information about reproductive health. When a safe access zone is created, the Department will publish the extent of the zone to raise awareness that it is now in operation. The Bill contains a defence provision. If someone has no reasonable way of knowing that a protected person is in a safe zone, they can use that as a defence. Hopefully, that provides an extra layer of protection to avoid any unintended criminalisation.

Those are the key notes on the Bill. I am happy to answer any questions that members may have.

The Acting Chairperson (Mr Newton): Thank you. I will throw it open to members.

Ms Dolan: Thank you, Clare, for introducing the Bill. It is a good Bill, which we obviously support. Unfortunately, it is needed. We have all heard horror stories about what women and girls experience whilst accessing healthcare. I have two questions. The Protection from Stalking Bill will introduce a new offence of threatening or abusive behaviour, alongside a new offence of stalking. Unlike existing harassment legislation that requires an act to have happened to the same person on at least two occasions, that will cover behaviour consisting of a single act. Was that new offence considered when drafting your Bill? Will it have any impact on your Bill?

Ms Bailey: Sorry; can you give me the last bit again, Jemma? I did not hear you well.

Ms Dolan: Was the new offence considered when drafting your Bill, and will it impact your Bill?

Ms Bailey: As compared with existing legislation provision?

Ms Dolan: Yes.

Ms Bailey: Under current harassment law, one person has to target the same person on two or more occasions to have caused the offence, and that needs to be reported to the police, who can then take action, if there is evidence to support that. That is not sufficient in these cases, because very rarely do you get the same person accessing the same service or the same building on two or more occasions or being approached by the same protester. There is usually more than one person at a protest, but it has to be the same person approaching the same person on two or more occasions. That law is therefore flawed in that it fails to address what is happening at the minute.

The public order offences are about waiting for harm to happen. That point was made very well by Claire Sugden during the Second Stage debate. Public order offences and non-molestation orders involve waiting for harm to happen and may be cost-prohibitive for some people. Enforcing an order for a person who may access services at another time in the future does not fit with the picture of what is going on at the minute. When it is cost-prohibitive, again, not everybody is able to access those channels. Again, that is predicated on harm being done; whereas the Bill seeks to prevent harm from being done while facilitating a balance between competing rights.

Ms Dolan: OK. Fair enough.

This is my second and last question. Your Bill does not introduce a penalty of imprisonment for someone convicted of an offence under clause 6. What were your considerations when deciding on the penalties? Why did you conclude, as you did, that only fines should be handed out?

Ms Bailey: Again, it is not my intention with the Bill to be heavy-handed or overly heavy with enforcement or sanction measures. It is simply to try to fill the gaps in current legislative provision in order to enable the PSNI, if required, to take, what I hope to be, swift but minor actions to move people on to a safe space. There are no imprisonment sanctions in the Bill. The highest sanction is a level-4 fine, which is equivalent to £2,500.

If there is a breach, with those types of behaviours happening when the safe zone is there, and a report is made to the police, the police have the powers to move people on. That is the first step. I hope that that will be most effective: allowing people to move elsewhere to continue what they are doing without interfering with someone's right to access healthcare. It goes up to a level 4. On the off-chance that someone repeatedly breaches the safe zone, the sanctions in the Bill will allow the police to take further measures. The first step, before any fine is imposed, is to allow the police to move people on and then to forcibly remove them with reasonable measures, if needs be.

Ms Dolan: That is fair enough. Thanks again.

Ms Bailey: I did not feel that prison sentencing was a good way forward, either. A short prison sentence would be required. I am not in favour of that, and I know that the courts are reluctant to regard that as an effective measure. Prison sentences were considered, but I did not go down that avenue.

Ms Dolan: Yes, I agree. That is fair enough. Thank you for that, Clare, and thanks again for introducing the Bill. Those were all my questions.

Miss Woods: Thank you for giving us that briefing, Clare. I am obviously in favour of the Bill. Thank you for bringing it forward. I know that a number of issues were brought up at the debate on its Second Stage. People pointed especially to the question of why we would not just change the harassment legislation. As you outlined, that brings its own issues, in that harm would still need to be done, whereas the Bill effectively tries to stop that harm happening.

I want to ask about examples from elsewhere. During the debate, the Isle of Man was mentioned. The explanatory and financial memorandum (EFM) gives another example: the public spaces protection order in Ealing Council. We also talked about the balance of rights. When you were creating the Bill and looking at other places — we mentioned Australia and so on — did you become aware of any legal challenges ever having been taken against balances of rights? A core argument during the debate was that the Bill is very vague. I do not agree; I think that it is very specific in what it does. Given that there are safe zones in other countries, you are not aware of any legal challenges that have been brought against people's right to protest, are you?

Ms Bailey: It is exactly as you say: any challenges will come from that balance of competing rights, so it is only fair that we set out what that balance is. People absolutely have the right to protest — freedom of association — but that is a limited right with caveats. The limitations that can be imposed in those circumstances — I have highlighted them here — have to be covered by law. That is what the Bill seeks to do. They have to be necessary and proportionate and pursue one or more of the following aims, which are to be:

which, I feel, the Bill does, or be:

which, I feel, the Bill does, or be:

which, again, I feel, the Bill does, or be:

I feel that the Bill achieves a very good balance between those competing rights. There have been legal challenges to that in the past, when zones have been implemented. The closest case to us is when they were imposed in Ealing. In the explanatory and financial memorandum to the Bill, when we were trying to assess the cost implications of the Bill, that was all that we really had to go on. I think that Ealing Council spent up to £250,000 dealing with court challenges. It is important to note, however, that the High Court ruled in favour of upholding the zones for Ealing. When that challenge was laid with the Supreme Court, it refused the challenge and upheld the High Court ruling.

Miss Woods: Thank you. That is all from me.

The Acting Chairperson (Mr Newton): No other members —.

Mr Beattie: Chair.

The Acting Chairperson (Mr Newton): Yes, go ahead.

Mr Beattie: Thank you, Clare. You have my support, of course. This needs to be done, and I thank you for bringing the Bill forward. I am sorry that this is not a technical question, but I am trying to get a sense of something, if I can. I am trying to visualise the safe zones. For example, at Craigavon Area Hospital, one of these demonstrations takes place every Tuesday evening. I pass that every Tuesday evening, and that is fine. It takes place at the only access point to the hospital, which is still quite some way away from the hospital. When we talk about safe zones, are we talking about safe zones that are a lozenge around the facility, whether it is a hospital or a clinic, or are we talking about a safe zone at a choke point that everybody has to pass through to get to one of these services? If it is the latter, how do you create a safe zone when the choke point is both the road that people use to get into the service and the through road? Does that become a problem?

Ms Bailey: We spent a lot of time on that, Doug, when we were coming up with the Bill. All premises are different, which is why the Bill says that the Department has to come up with a zone that is specific to those premises. For example, in the case in Coleraine that you speak about, there already is a natural buffer zone where the protest happens without impeding people's safe access. People can get to public transport, to the car parks and to the building's front, back and side entrances without interference. It is not the same for other buildings, however. For example, College Street in Belfast, which is the location of Belfast Health and Social Care Trust's main family planning clinic, is in a busy city centre. The context is very different from that of Coleraine Area Hospital. How can staff come and go without being impeded? How can service users — women or people accompanying them — come and go? How can other building users come and go? That is a really important point as well. They are affected because in that one building there are not just the family planning services but the blood transfusion services, admin staff and payroll staff, I think, although I cannot remember. They are all in there, so they are all affected. The zone for that specific building would therefore look very different from that for Coleraine.

My personal experience is of Great Victoria Street. When the Marie Stopes clinic was open, it was at one end of Great Victoria Street and the Family Planning Association was at the other end, at Shaftesbury Square. The geographical spaces outside those two buildings were very different. The Marie Stopes clinic was on a narrow pathway with heavy pedestrian traffic; there were telephone boxes, parking meters, billboards, cafes and seating in a very small, crowded space, along with the protesters and the people who were trying to access the clinic. At the other end of the street, at Shaftesbury Square, there was a huge pedestrian area of footpaths outside the Family Planning Association, but there was very little footfall, and access to a bus or train station was very different from that at the other end of the street.

It is about tailoring safety and asking, "What does safe access look like for this particular site?". If a natural buffer zone happens, that is grand, as long as people can access the services and staff can go about their business freely, which means access to transport, entrances and exits. That will be specific to a premises.

Mr Beattie: Thank you, Clare. That paints a picture. If the protests are absolutely nothing more than silent protests with placards that may only have wording rather than images, do you envisage that, with a safe zone, they would be allowed to continue, or not?

Ms Bailey: It is about how people feel. We do not know how that situation might impact service users or staff who have to go through it every day. I do not know what the wording or the silent protest might be, but if the impact is to cause distress, fear or alarm, or if the protest seeks to influence someone's decision, the safe zone is needed.

Mr Beattie: Thank you very much, Clare.

The Acting Chairperson (Mr Newton): Clare, do you want to make any concluding remarks?

Ms Bailey: It might help the Justice Committee, in particular, to know that the PSNI is aware of the Bill. I will meet representatives to go through the Bill's provisions. So far, they are glad to hear that there are provisions to allow them to take action, if needed. I hope to meet them very soon.

If anybody has further queries during the Bill's passage, I will be more than happy to speak about any issues, even one-to-one.

The Acting Chairperson (Mr Newton): OK. Thank you, Clare, for your attendance today.

Ms Bailey: Thank you.