Hansard

Lovely. Thank you. Good morning. My name is Emily Ottley. I am a lecturer in law at the University of Winchester. As you just explained, I was asked to undertake an international comparison of safe access zone legislation to support the committee’s scrutiny of the Abortion Services (Safe Access Zones) (Scotland) Bill. I conducted my research using secondary research methods, specifically doctrinal analysis of the relevant legislation and case law, and a literature review of, principally, parliamentary reports but also relevant academic literature, where that was available. I have looked at safe access zone legislation from England and Wales, Northern Ireland, New Zealand, the Isle of Man, Australia, Canada, the USA and the Republic of Ireland. Within Australia, Canada and the United States of America, there is a variety of safe access zone legislation. All eight Australian states and territories, six Canadian provinces and five states in the USA have safe access zone legislation. Therefore, in total, I looked at safe access zone legislation in 24 jurisdictions. The safe access zone bill in the Republic of Ireland is making its way through the Irish Parliament, so it is not yet law. It is widely expected that the Government bill will eventually become law, although there might be some differences from the bill that was passed by the Dáil in November 2023, which is what I used in my research. I should add that, given the scope of my research, I have not examined the Scottish bill as introduced in detail. Spain also has safe access zone legislation, but I excluded that jurisdiction from my research due to difficulties in accessing the law in English. Also, Spain has a civil rather than common law legal system, which makes it different. In relation to each safe access zone law, I considered the details of the provisions in the legislation, the context that informed the introduction of the legislation, any challenges that were encountered during or after the passage of the legislation and the impact of the legislation. I will summarise my four key findings. I will not speak for long so that there is plenty of time to respond to members’ questions. My first key finding concerns the details that the provisions in such legislation contain. Safe access zone legislation is characterised by creating, or providing for the creation of, a protective area around premises where abortion services are provided. However, the details of the provisions in the safe access zone legislation that I looked at vary considerably between jurisdictions, in particular with regard to the method for the creation of the protective areas; the size of those areas; the behaviour that is prohibited within them; and the penalties for violating the law. I will comment briefly on each of those elements; the four comparison tables that are included at the end of my report provide further detail. First, with regard to the method for the creation of the protective areas, the key point of distinction is whether safe access zones apply automatically to all premises where abortion services are provided, as in England and Wales, or whether some additional step is required to create a safe access zone outside a particular premises. That additional step may involve merely notification by premises operators, as in Northern Ireland, or a more formal application-and-review process, such as the one that has been established in New Zealand. Alternatively, legislation may afford some official a power either to create safe access zones, as in the Australian Capital Territory, or to identify protected premises, as can be seen in Alberta and Nova Scotia. Secondly, with regard to the size of the protective areas, that typically falls somewhere between 50m and 150m. However, the protective areas in the US legislation are noticeably smaller. The largest, in Colorado, is 100 feet, which—if my maths is right—is approximately 30m. Colorado, along with Montana, also has an additional smaller floating zone around persons who are within the larger fixed zone. That is essentially to prevent protesters from approaching clinic users and staff outside the clinic. A key distinction with regard to the size of the protective areas concerns whether there is scope for its extension or reduction. In England and Wales, for example, all safe access zones are 150m; that cannot be extended if 150m is insufficient, nor reduced if 150m is excessive. In contrast, a safe access zone in Northern Ireland is 100m as standard, but it can be extended up to 250m for a particular clinic where 100m would not be adequate to afford safe access to the premises. In Queensland, in Australia, safe access zones are 150m as standard, but a smaller or greater distance can be prescribed in regulation. Queensland is actually a relatively rare example of a law that allows the protective area to be reduced, not just extended, in size. Queensland is also fairly unusual because it does not set an upper limit for the extension of safe access zones. The size of the protective areas is sometimes connected to the method of creation for those areas. Quite often, where protective areas are not created automatically, the size of the area will be determined case by case, as part of the process for establishing a protective area. There may be an upper limit set out in law for that, as in New Zealand, or a minimum size, as can be seen in the Australian Capital Territory. Thirdly, with regard to the behaviour that is prohibited in protective areas, England and Wales, along with Northern Ireland, prohibit any act that is done with the intent of, or reckless as to whether it has the effect of, influencing a person in their decision, obstructing or impeding access to the premises, or causing harassment, alarm or distress. In contrast, most other jurisdictions specify particular behaviours or activities that are prohibited. The prohibited activities and how they are formulated in the law vary, but there are some common examples. Those include recording persons; obstructing or impeding access to premises; threatening or intimidating persons; expressing disapproval of abortion; advising or persuading persons who are accessing or providing abortion; informing persons on matters relating to abortion; and continued or repeated observation of premises. Again, the US stands out, in particular in Colorado and Montana, where all that is prohibited is protesters physically approaching clinic users and staff in close proximity to the premises. Finally, with regard to penalties, all the jurisdictions that I looked at impose fines, although the amount varies. The key distinction in that regard is whether imprisonment is also a possibility. Anti-abortion protesters who violate the law can be imprisoned in most Australian states and territories, with the exception of the Australian Capital Territory; in most Canadian provinces, with the exception of Québec; in three out of the five US states; and in the Isle of Man. There is currently also provision for imprisonment in the Irish bill. Notably, however, imprisonment is not an option in England and Wales, Northern Ireland or New Zealand. 10:00 I will now move on from the details of the provisions contained in the legislation to my second key finding, which concerns the context informing the introduction of the legislation. Typically, safe access zone legislation is passed in response to concern about current or future protest in the vicinity of premises where abortion services are provided and a desire to ensure good access to abortion services. In England and Wales, the number of women who are currently affected by protests was emphasised in the parliamentary debates. Elsewhere, the frequency, continuity and severity of protests have been relevant. In some places, a perceived escalation of some kind has been significant. The Isle of Man is a really interesting example, because there had not really been any protest activity of the kind that we are talking about. However, after anti-abortion protesters had visited the island to protest against the proposed reform of abortion law more generally, members of the House of Keys were concerned that the Isle of Man would experience more protest activity, including outside premises where abortions were provided, once abortion was more widely available there. There was a perceived risk of anti-abortion protest activity in the future. We see that elsewhere, too. There was concern that South Australia would become the only Australian state without safe access zone legislation, and protests could therefore become a big problem there. The existing lack of legal measures that could adequately deal with protests in the vicinity of premises where abortion services are provided was a common justification for safe access zone legislation across all the jurisdictions that I looked at. Interestingly, those who opposed the passage of safe access zone legislation would often argue that laws already existed that could respond to the perceived problem. Often, but not always, provision for safe access zones is made alongside or shortly after broader abortion law reform that liberalises access to abortion services. The Isle of Man is a good example of the former, and Northern Ireland and New Zealand are examples of the latter. England and Wales, and indeed Scotland, do not fit that pattern. I note that the climate of severe anti-abortion violence is unique to the United States, although there have been instances of anti-abortion violence in Australia and Canada. That unique context is reflected in US law, which, as I have mentioned, is noticeably different to that in the other jurisdictions that I considered as part of my research. I now move on to my third key finding, which concerns the challenges encountered during or after the passage of the legislation. It clearly stood out to me that the most significant challenge encountered both during and after the passage of safe access zone legislation has been in achieving a satisfactory balance between the rights of those who wish to protest at clinics and the rights of clinic users and staff. It is of course necessary to strike an appropriate balance in order to comply with human rights and constitutional obligations. That challenge is clear from the parliamentary debates, where those who oppose safe access zone legislation criticise bills for going too far, while others struggle to frame the bills in such a way as to strike that appropriate balance. There is a really close connection between that challenge and the details of the provisions contained within the legislation, particularly with regard to the activities that are prohibited within the protective area. That challenge is also clear from a number of court cases in Northern Ireland, Canada, Australia and the USA that were brought by protesters, who claimed that safe access zone legislation violated their rights and the rights of other protesters. Most of those legal challenges have been unsuccessful, including the challenge to the Northern Irish law. The United Kingdom Supreme Court acknowledged that making it an offence “to do an act in a safe access zone with the intent of, or reckless as to whether it has the effect of ... influencing a protected person” interferes with protesters’ rights to freedom of thought, conscience and religion, freedom of expression and freedom of assembly under articles 9, 10 and 11 of the European convention on human rights. However, the court ultimately concluded that that interference was proportionate, and therefore that the law was compatible with the convention. A second challenge, which is worth briefly mentioning, is a delay, once legislation has been passed, in safe access zones coming into effect outside premises that provide abortion services. We might expect such a delay in countries in which zones are not automatically created but are instead subject to an application process, as in New Zealand. However, there has also been a delay in England and Wales. The relevant bill received royal assent on 2 May 2023, but the section that establishes safe access zones is still not in force—not when I checked last night, anyway. It is expected to happen soon. Publication of non-statutory guidance is coming, and the commencement of the relevant section will follow in due course. There has been a period of consultation on the draft guidance, but I am not aware of a specified date. My fourth and final key finding concerns the impact of the legislation. The availability of evidence on the impact of safe access zone legislation is, generally, very limited, although some academic research on the efficacy of safe access zones in Australia has been done, by Ronli Sifris and Tania Penovic. They interviewed professionals from across Australia and concluded that the safe access zones were achieving their objectives of protecting the rights of patients and staff to privacy, facilitating safe access to services without fear, and reducing misinformation and stigma. Although the researchers noted that some protesters had maintained a presence outside the protected areas, they thought that the distancing away from the premises was significant. I suspect that the lack of evidence and research to date is due at least in part to the fact that much of the safe access zone legislation has been passed only very recently. Sources that are cited in my report have called for further research to be done in due course. The legislation in Northern Ireland and the bill in the Republic of Ireland require a review of the efficacy of both safe access zones and the operation of the legislation. That might prove to be a useful source for looking into impact, in the future. Thank you for your attention. I look forward to answering members’ questions.