Silent Prayer vs Safe Access
The UK’s Cautious Approach to the Regulation of Silent Prayer Outside Premises Providing Abortion Services
In line with a broader trend in Western jurisdictions with common law systems, all three jurisdictions in the United Kingdom (UK) now have Safe Access Zones (SAZ) legislation (Northern Ireland, England and Wales, and Scotland). SAZ legislation creates, or provides for the creation of, a protective area around premises where abortion services are provided to ensure good access to those services. Specified behaviours are criminalised within these protective areas.
SAZ legislation responds to frequent and widespread anti-abortion protests outside premises providing abortion services in Northern Ireland, the large number of pregnant persons who were or might be exposed to anti-abortion protests in England, and the increase in anti-abortion protests occurring outside premises where abortion services are provided in Scotland. There is some variation in the specific provisions of each of the SAZ laws in the UK. Nevertheless, a common challenge in all three UK jurisdictions concerns the regulation of silent prayer, which is the focus of this blog post. I argue that the way in which prohibited behaviour is defined in UK SAZ legislation demonstrates a cautious approach that protects a pregnant person’s right to access lawful abortion services in conditions of dignity and privacy without drawing attention to any specific behaviours undertaken by anti-abortion protestors.
Silent prayer as a form of anti-abortion protest
Silent prayer is just one example of an activity undertaken by anti-abortion protestors outside premises providing abortion services. Research undertaken by Lowe and Hayes indicates that silent prayer is a form of reproductive coercion because it intimidates and shames those seeking access to abortion services. Nevertheless, silent prayer is often singled out as an example of less severe behaviour and, as such, one that is more controversial for the law to regulate.
There are some high profile examples of anti-abortion protestors who were praying outside abortion clinics in England being arrested for breaching SAZs created by Public Space Protection Orders (under the Antisocial Behaviour, Crime and Policing Act 2014) prior to the coming into force of SAZ legislation on 31 October 2024. One of these anti-abortion protestors subsequently made a claim in civil law for unlawful arrest, assault, and breach of her human rights. This was settled out of court by West Midlands Police without any admission of liability. The first (and so far, only) conviction for praying outside an abortion clinic in England occurred at Poole Magistrates’ Court on 16 October 2024. Adam Smith-Connor was given a two-year conditional discharge, which means that he will not be sanctioned for his offence unless he commits a further offence during the two-year period.
UK SAZ law on silent prayer
None of the UK SAZ laws expressly refer to “silent prayer”. First, silent prayer is not explicitly excluded from the definitions of prohibited behaviour. Indeed, amendments seeking to exempt silent prayer from behaviour prohibited within SAZs were rejected by both the Scottish and English/Welsh legislators. Second, silent prayer is not explicitly included within the definitions of prohibited behaviour. Rather, what is prohibited in all three UK jurisdictions is any act that is done with the intent of or recklessness as to whether it has the effect of influencing a person or their decision, obstructing or impeding access to the premises, or causing harassment, alarm, or distress. However, this definition of prohibited behaviour (“any act”) is certainly wide enough to include silent prayer – provided it is undertaken with the necessary intention/recklessness. This is expressly acknowledged in guidance published on the Scottish government’s website and in a recent UK Home Office press release.
Controversial draft guidance on the implementation of SAZ law in England and Wales that was published in December 2023 by the previous (Conservative) government would have allowed silent prayer to occur within SAZs unless it was “intrusive”. The reference to intrusive conduct came from the judgment of the Supreme Court of the United Kingdom (UKSC) when it examined the Northern Irish SAZ legislation in December 2022. The draft guidance noted that, while the UKSC did explicitly refer to silent prayer in its judgment, the specific conduct described was intrusive. However, silent prayer was described as intrusive in the judgment (at paragraph 128) because patients and staff could not avoid it. Therefore, an argument could be made that silent prayer undertaken close to premises providing abortion services is necessarily intrusive. Nevertheless, this did not seem to be the intention of the government, given that the draft guidance expressly stated that “[p]rayer within a [SAZ] should not automatically be seen as unlawful”. The draft guidance was criticised for watering down the protections for patients/staff set out in the law and for undermining Parliament’s intention (on the basis that an explicit exemption for silent prayer had been rejected).
The ECHR on silent prayer
The draft guidance attempted to justify its position on silent prayer on the basis that silent prayer is “protected as an absolute right” under the Human Rights Act 1998, which incorporates the European Convention on Human Rights (ECHR) into UK domestic law. However, this statement in the draft guidance does not accurately represent the position under the ECHR. While the right to hold a belief (including opposition to abortion) is indeed absolute under Article 9 ECHR (the right to freedom of thought, conscience and religion), the right to manifest a belief in practice and observance alone or with others can be restricted if the restriction is in accordance with law, has a legitimate aim, and is necessary in a democratic society. In the case of Van Schijndel and others v the Netherlands, the applicants were charged with breach of the peace for entering an abortion clinic to pray in a corridor. The European Commission of Human Rights stressed the importance of freedom of thought, conscience and religion, but it also noted that Article 9 ECHR “does not always guarantee the right to behave in the public sphere in a way which is dictated by a belief”. In this case, the Commission accepted for the sake of argument that the applicants’ activities were a manifestation of their religious beliefs, but ultimately concluded that the restriction on this right could be justified.
Silent prayer undertaken outside premises providing abortion services is more than merely “engagement of the mind and thought” (per the description in the draft guidance) because it is done in public where other people will witness the person who is praying silently. Indeed, the location where protestors have chosen to pray indicates their desire to make a statement about the immorality of abortion (as they see it) to patients/staff. Although written or spoken words are not being used to convey a message, there is nevertheless an unspoken message that would not be conveyed if the protestors prayed about abortions within their own homes or in religious buildings. Therefore, silent prayer undertaken outside premises providing abortion services is a manifestation of a belief, and a prohibition on silent prayer cannot properly be understood as a “thought-crime”.
Section 13 of the Human Rights Act 1998, which requires domestic courts to be sensitive to the particular importance of Article 9 ECHR, does not subvert these fundamental principles of ECHR law. Indeed, the UKSC undertook such an assessment in relation to the Northern Irish SAZ legislation and it concluded that the Northern Irish SAZ legislation was compatible with the ECHR. Additionally, the Conservative government had previously confirmed that, in its view, the English and Welsh SAZ law was consistent with the ECHR.
New guidance on SAZ laws in England and Wales
New guidance for prosecutors from the Crown Prosecution Service (CPS) has been criticised for not “automatically banning” silent prayer in English and Welsh SAZs. This is because it states that undertaking activities, including silent prayer, within SAZs will “not necessarily” amount to a criminal offence. Unlike the draft Home Office guidance, however, the CPS guidance does not single out silent prayer, nor does it give silent prayer special treatment by attempting to raise the threshold for the offence from that set out in the legislation. Rather, the CPS guidance merely reflects the fact that evidence concerning the circumstances of any (non-violent) behaviour undertaken within a SAZ is necessary to establish the intention/recklessness required by the legislation.
It is expected that the necessary recklessness could be inferred quite straightforwardly from the act of silently praying outside premises providing abortion services. This is because that person has chosen to undertake this act outside such premises during its operational hours, knowing that they will encounter persons seeking to access the services provided there who could be negatively impacted by the act. Any denial that he/she wanted to negatively impact those accessing abortion services is irrelevant. Additionally, there is explicit recognition in the CPS guidance that “religious or ethical grounds” do not constitute a defence. Given that English and Welsh SAZ law only came into force on 31 October 2024, it remains to be seen whether the police, prosecutors, and courts take action against those silently praying in SAZs. Specific advice for police has been published by the College of Policing. This emphasises that all decisions regarding police use of powers must be made on a case-by-case basis, and it refers to the CPS guidance.
Conclusion
To conclude, the way in which prohibited behaviour is defined in UK SAZ legislation demonstrates a cautious approach to the regulation of silent prayer outside premises providing abortion services. It protects a pregnant person’s right to access lawful abortion services in conditions of dignity and privacy without drawing attention to any specific behaviours undertaken by anti-abortion protestors. Silent prayer is not explicitly excluded from or included in definitions of prohibited behaviour. Rather, the definitions are wide enough to include silent prayer – provided it is undertaken with the necessary intention/recklessness. Ultimately, however, it is the implementation of UK SAZ legislation by police, prosecutors, and the courts that will truly shed light on the UK’s approach to silent prayer.
