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European Court of Human Rights to determine lawfulness of London’s first 'prayer ban'

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After the Supreme Court refused to hear the case concerning London’s first ‘prayer ban’, the case is now heading to the European Court of Human Rights in Strasbourg. Dulgheriu v. Ealing is a legal challenge to a ‘public spaces protection order’ (or PSPO) brought in by Ealing Council that had banned silent prayer, offering leaflets and other activities outside of an abortion centre on Mattock Lane. 

PSPOs have a notorious reputation for pettiness and infringement on basic civil liberties. The orders have been around since 2014 when Theresa May (then Home Secretary) provided local councils with enhanced powers to tackle anti-social behaviour.

The initial thinking behind PSPOs was to make it easier for councils to prevent nuisances like public urination that were spoiling community spaces. The problem was that it proved quite difficult to articulate the long list of things that that might turn out be a public nuisance, and so PSPOs gave councils the power to ban anything provided it had a ‘detrimental effect on the quality of life of those in the locality.’ There were some further caveats but the bar to ban activity was intentionally set very low, and the power was supercharged by making it a criminal offense for anyone to breach the terms of a PSPO. 

Councils had been gifted an extraordinarily broad power to implement bans and it wasn’t long before they started wielding PSPOs to outlaw all sorts of activities. A number of councils brought in PSPOs making it a criminal offence to swear in public or sleep rough. Richmond made it a criminal offence to ride a bicycle around the park in a manner that would ‘give reasonable grounds for annoyance.’ Hayes made it a criminal offence to gather in groups of two or more in the town centre, unless you were waiting for ‘a scheduled bus at a designated bus stop.’

However in April of 2018, Ealing Council went considerably further by introducing the first criminal ban on prayer since the reign of Elizabeth I. Not all prayer though – only prayer that related to abortion. That was because the justification for the sweeping prohibitions in Ealing was that women entering the abortion centre on Mattock Lane have been subject to harassment and intimidation by nearby ‘protestors’. 

‘Protestors’ was the term that Ealing Council used, but on the evidence before the courts, much of the activity outside the centre was aimed at providing alternatives to abortion by offering financial assistance, safe housing and other support to women – some of whom reported feeling pressured to have an abortion. Usually there was a person near the entrance politely offering a leaflet which detailed the support available, and another person nearby praying. While there were allegations of more unpleasant behaviour, those who took the time to observe what was actually going on at the centre had very little to report.

Ealing however, spurred on by a vocal abortion advocacy group, took the decision to criminally prohibit ‘protesting’ in the following terms: 

‘engaging in any act of approval/disapproval or attempted act of approval/disapproval, with respect to issues related to abortion services, by any means. This includes but is not limited to graphic, verbal or written means, prayer or counselling.’ 

It also criminalised ‘attempting to interfere, whether verbally or physically, with a service user or member of staff’, as well as ‘displaying any text or images relating directly or indirectly to the termination of pregnancy’.

The vagueness of the wording used is remarkable but its intent is clear: to cover anything – innocuous or not – that might happen outside of a centre. So not only had protest in the usual sense been criminalised, but also prayer (even silent prayer by Ealing’s own admission) as well as making an offer of support in the gentlest form imaginable. This was the option pursued even though local police had a wide range of powers to deal with any inappropriate behaviour and had not asked for any further measures to be introduced.

The PSPO was immediately challenged by a young mother who had herself received support outside of an abortion centre which meant that she was able to give birth to her daughter. She argued that the PSPO went far beyond what was needed to safeguard women, and in fact prevented access to support for mothers who desperately wanted help to avoid an abortion. Jeremy Corbyn on the other hand was so impressed by Ealing that he awarded them the Local Government Best Practice Award at the Labour Party Conference.

The High Court went on to rule that while fundamental rights had been infringed by the PSPO, Ealing Council was entitled to implement the restrictions in light of the wide power bestowed on it. And while the Court of Appeal gave permission for the case to be reconsidered, it ultimately went on to uphold the High Court’s decision. 

Unfortunately, when faced with the sensitivities of abortion, the courts quite obviously gave great deference to the local council and sidelined the reality of those who had accepted an offer of support outside the abortion centre. While the PSPO was touted as effort to combat harassment and intimidation by Ealing, from the perspective of the vulnerable women who had no one else to turn to, all it did was outlaw a lifeline. 

PSPOs were never intended to be used to ban prayer, offers of support and peaceful protest, but that genie is now out of the bottle. It is indicative, but largely forgotten, that the Home Office recently refused to implement similar restrictions on a national scale on the basis that it would not be proportionate to outlaw activities that were mainly ‘passive in nature’. 

Without a meaningful check on this power, PSPOs will be increasingly relied upon to criminalise all sorts of behaviour that a local council in its sole discretion deems a nuisance. Begging, street entertainment and busking are all coming into the crosshairs of PSPOs, giving councils an extraordinary ability to shape how our public spaces look and feel. And with very little opportunity to challenge these orders in the courts or elsewhere, a full review of this very illiberal regime by Europe’s top human rights court would be a very welcome development.   

Laurence Wilkinson is Legal Counsel with ADF International, a faith-based legal advocacy organisation 

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