Seòmar agus comataidhean

I will address amendments 6, 7, 15 and 16 quickly. The amendments are drafting improvements. Amendment 6 clarifies that “protected premises” may refer to a building

“that is, contains or forms part of a hospital”

and that the building must provide abortion services.

Amendment 15 reflects that change, and amendments 7 and 16 improve the wording of those provisions.

I will address the amendments to section 10—amendments 35 to 38—together. First, my amendment 36 provides flexibility in how the definition of “protected premises” may be modified. As introduced, section 10 allows the definition to be extended to cover places approved as

“a class of place mentioned in section 1(3A) ... of the Abortion Act 1967”.

For example, if general practices were approved as abortion providers, they could all be covered by a zone.

Section 10 also allows the definition to be extended to places providing

“treatments or services relating to abortion services”.

For example, a zone could be established around a building where counselling related to abortion treatment is provided.

Under those provisions, if a class of place were approved under the 1967 act, ministers could not extend the definition of “protected premises” in the bill to include only individual premises that were part of a class of place.

To continue my example, if general practices were approved as abortion providers, but not all practices offered the service, ministers could not establish a zone solely around those practices that needed it. Instead, they would have to extend the definition to include all general practices. That would cover more providers than necessary. I am grateful to Dr Gulhane for drawing attention to the issue. My amendment 36 responds directly to points that he made at the evidence session on 19 March. The amendment provides that ministers can now extend the definition to cover individual premises within a class of place approved under the 1967 act. That provides greater flexibility and is proportionate. If required, however, the whole class of place can be added.

As ministers must always act proportionately, they will be bound to use the less restrictive option, where the evidence supports the aim of protecting women and staff. I hope that members agree that that is a positive step that ensures that the bill is future-proofed, while also reflecting the Government’s obligation to always act proportionately.

I now turn to Dr Gulhane’s and Mr Balfour’s amendments. Given what I have set out, I hope that you will not be surprised to hear that I am resisting both.

With amendment 38, Dr Gulhane seeks to entirely remove the potential to extend the definition of protected premises. As I set out to the committee during my evidence, by including that section we will ensure that we pass legislation that is capable of protecting women, not just this year or next, but in years and maybe even decades to come. It means that women and staff will be able to access and provide services, even if treatments or delivery models change, and it provides scope to respond if the behaviour of groups that oppose abortion and the venues that they target change.

If anyone doubts that that is necessary, I would ask them to reflect on the history of abortion care since the Abortion Act 1967 was passed. When the 1967 act came into force, having an abortion meant undergoing a surgical procedure. Now, for many women, having an abortion involves visiting a clinic to collect tablets that they can take at home. We have no idea what care will look like in the future, but it would certainly be unwise to assume that it will remain as it is now.

Likewise, although I hope that it does not happen, we cannot rule out that the ways in which anti-abortion groups will seek to target those who are having abortions will continue to evolve. A decade ago, we did not see the kinds of activity in Scotland that we do now, and, although I will not labour the point, we have seen how anti-abortion groups have mobilised to strike at abortion provision in the United States in ways that we would not have imagined possible.

We must make sure that we are able to respond if we need to, although, of course, always ensuring that we act compatibly with the European convention on human rights. Section 10 does not threaten any broader rights to protest. It could only ever be used to protect women and staff at the point where they are accessing or providing services. Of course, I understand that the prospect of covering all GP practices or pharmacies could be significant, and committee members may have concerns about that. I do not want to dismiss that, but I will provide reassurance.

First, the examples that I have given are purely illustrative. There are no plans to approve pharmacies or GP practices as classes of place under the Abortion Act 1967. As I said earlier, we have no idea what the future might bring. A class of place approval may never be granted, or it may be granted for a very small set of premises. Section 10 ensures that we can act if we need to, and the Government amendment has ensured that the protection can be extended only to those premises where it is needed.

Secondly, any decision to extend the definition will be evidence based, and the Scottish ministers must always act compatibly with the European convention on human rights. Because of that, no additional protected premises can be added unless ministers are satisfied that it would be proportionate. They would have to balance protecting the article 8 rights of women and staff with any interference to articles 9, 10 and 11 rights. Again, that underlines the significance of the Government amendment. If protecting only individual premises, rather than an entire class of premises, would achieve the bill’s aims, ministers would be duty bound to do only that.

Thirdly, ministers cannot act unilaterally. Any change to the definition of “protected premises” using section 10 will require affirmative regulations. The Scottish Parliament will therefore be able to scrutinise the necessity and proportionality of the designation of any new protected premises. If the Parliament is not satisfied that ministers have met their obligations, or that the evidence to modify the definition is sufficient, the regulations could be voted down.

My reasons for not supporting Mr Balfour’s amendments 35 and 37 are very similar. In the event that GP practices or pharmacies are approved as a class of place, we must be able to extend protection to them if that is needed. As I have said, there are no plans to do that. Nevertheless, it is illogical to exclude them when there is a possibility that they could be approved as a class of place for the provision of abortion services and then targeted in the future.

I recognise the concern that underpins those amendments and I hope that the Government’s amendment 36 will provide reassurance that we, too, have considered the matter and have taken steps to ensure that the least restrictive approach will be taken.

I move amendment 6.

I am aware that Ms Mackay intends to provide a full and detailed response, so I will simply affirm that the Scottish Government’s position aligns entirely with hers. In-depth work has been undertaken to ensure that the bill sets a zone size that takes into account the specific circumstances of individual premises and, thereby, provides adequate protection while remaining proportionate.

To accept amendment 43 would be to strike at the bill’s heart without reasonable justification. It would represent bad lawmaking, as the legislation would not be fit for purpose because the zones would not be of the necessary size.

Thank you, convener. I apologise. I will just get the right page in my file—my tome.

The Scottish Government has lodged amendments 8 to 14, 26 to 30, 32, 40 and 41, which would amend sections 2, 7, 8 and 13. The bill establishes safe access zones around premises in Scotland that provide abortion services. Therefore, it is important that the way in which safe access zones are described is accurate and easy to understand.

It is proposed that a safe access zone will exist around premises that provide abortion services, which are to be called the “protected premises”. The zone will, therefore, consist of the protected premises, the public area of the grounds of the protected premises and the public area of land that lies within a boundary measured from those grounds.

The ability for legislation to be understood by the reader is key to good law. In between the bill’s being published and stage 2, I took the opportunity to review the wording of the bill and I identified some areas where there is unnecessary duplication of words, or areas that could be simplified. Overall, the amendments in the group are designed to make it easier to understand how a safe access zone is defined and measured.

Amendments 8, 10, 28 and 29 will remove unnecessary repetitive wording. Amendments 12 and 40 will remove the term “edge of the protected premises”. That term will be replaced through amendments 14 and 41, which will introduce a new defined term—“protected site”. The reason for that is to improve clarity and avoid repetition of words. There has been no change in policy; rather, the changes help to explain that the protected site is made up of the protected premises together with its grounds.

Amendment 13 will clarify the definition of “grounds”. As a consequence of the change of the wording to “protected site”, amendments 9, 11, 26, 27, 30 and 32 will replace the phrase “edge of the protected premises” with “boundary of the protected site” throughout the bill.

I understand that Ms Harper will speak to the amendments in her name, and I will address those when I wind up the group.

I move amendment 8.

I have just laid out what Police Scotland would do in such situations. My hesitancy is related to what health boards and health providers feel is the appropriate level of information to give people to inform them of where the zones begin.

As I have pointed out, the Scottish Government is working towards there being very good information to ensure that people are informed. I recognise that we must do everything that is practical to make the law clear to those whom it might impact. I would welcome the opportunity to undertake further exploration of the issue with Ms Gallacher and Ms White, if they are willing. I hope that Ms Gallacher will not press her amendment 51, in order to allow that work to happen. However, if it is pressed, I hope that the committee will vote against it.

I hope that members agree that an element of future proofing is needed, as Carol Mochan said, to allow the bill to continue to achieve its aims even if abortion treatments or the way in which services are provided change. As I have explained, should the powers be used, they will always be subject to parliamentary oversight, as Gillian Mackay has emphasised.

I thank Mr Balfour for his contribution and tone. If I heard him correctly, he does not intend to move his amendments 35 and 37. I thank him for that and am happy to have further conversations with him prior to stage 3.

I hope that the arguments that I have just laid out, combined with the improvement to be made by amendment 36, is sufficient to convince Dr Gulhane and Mr Balfour not to move their amendments. I thank Mr Balfour for noting that he will not do so. However, if Dr Gulhane moves amendment 38, I urge members not to vote for it. That will preserve the ability for the legislation to be relevant and fit for purpose in years to come.

Amendment 6 agreed to.

Amendment 7 moved—[Jenni Minto]—and agreed to.

Section 1, as amended, agreed to.

Section 2—Establishment of safe access zones

In pulling the bill together and deciding on 200m, we did a huge amount of in-depth work, looking at every single facility in Scotland that provides abortions to ensure that entry points into those locations are covered. In some locations, including, I believe, one in Ms Hamilton’s constituency, 150m would not be large enough to cover the area that we believe we need to cover in order to ensure that women and staff can access abortion clinics safely and without harassment.

I thank Ms Hamilton for that proposal. However, as I set out in my arguments for the committee to reject the amendment, I am concerned about the dubiety that it raises. Purpose clauses are not used generally. We have used them before, for example in the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021, where one was included to make it clear that the act would not apply until the United Kingdom left the European Union.

We have been very clear in all our policy documents that the bill is being introduced to ensure that women can access healthcare safely, without intimidation and without fear of harassment. That is clear within the bill and in all the policy notes that support it.

This is a complex topic and my remarks are, accordingly, quite lengthy. However, before addressing any specifics, I note that the provisions in the amendments in this group would almost universally be highly damaging to the bill’s intent and practical operation.

The exception, in my view, is Mr Balfour’s amendment 22, which would create a specific exemption from the offences under the bill in relation to the provision of “chaplaincy services”. The Government would like more time to consider the amendment to ensure that it would apply equally to all faiths, but we do not object, in principle, to the idea. I hope that Mr Balfour will not move his amendment, to allow that consideration to happen, but I must ask that the committee resists all his amendments, if he moves them—although I see him indicating that he might not.

Dr Gulhane’s amendments 17 to 20 seek to introduce an exception to the section 4 and section 5 offences where the effects of an action are not “reasonably foreseeable”. I am grateful for Dr Gulhane’s thoughtful and considered questioning during the committee’s scrutiny and I know that his amendments are intended to increase safeguards within the bill, but I must ask members to vote against the amendments on the grounds that they would undermine a key element of the bill while failing to strengthen it in a meaningful way.

A key purpose of the bill is to ensure that women and staff are not required to come forward to report their experiences of anti-abortion activity to the police in order for an offence to have been committed and protections to apply. For understandable reasons, given the personal and sometimes upsetting nature of the matters concerned, women and staff are often reluctant to do that. Moreover, requiring women to report harm that they have experienced means that harm must happen before action can be taken. That is entirely opposite to the bill’s aim, which is, as far as possible, to prevent certain harmful effects in the first place.

There are two scenarios in which offences would be committed: first, where acts are carried out with the intention of influencing, impeding, causing alarm or harassment, or, secondly, where acts are carried out recklessly as to whether they have those effects. In either case, whether an offence has been committed will be based on the evidence of the individual’s behaviour, either by assessing their intentions or establishing whether they were reckless as to their effects. The result is that a demonstrable effect on a specific person does not require to be evidenced and, crucially, women or staff do not need to come forward and make a report before action can be taken. Instead, other witnesses can report the behaviour and provide corroborating evidence.

The amendments would provide that, even if a person carried out an act with the intention of causing one of the effects in the offence provisions, it would not amount to an offence unless the foreseeability test were met. That creates uncertainty around the offence provisions and their enforcement without any discernible benefit. In practical terms, it is hard to conceive of a situation in which the intention to influence, harass or intimidate an individual could be established without its being reasonably foreseeable that the act in question would have that effect.

In relation to the recklessness offence, there must be evidence that the accused had an utter disregard as to its effects; in other words, there must be a very high degree of indifference as to the consequences of the actions. Recklessness will generally be inferred from all the circumstances of the case and will involve, to some extent, the court considering the likely consequences of the accused’s action. To that extent, whether the consequence was—or should have been—reasonably foreseeable will be something that the court may consider. I therefore reiterate that the amendments would weaken the bill without benefit, and I urge members to preserve the bill’s original intent and to vote against amendments 17 to 20.

Similarly, I do not support, in the strongest terms, Mr Balfour’s amendment 25. It runs directly counter to the bill’s aims in seeking to allow behaviour that meets the high threshold for the offence provisions to be considered “reasonable” and to constitute a defence. That would run the risk of significantly diminishing the potential protection provided by the bill.

In very simple terms, amendment 25 would mean that someone who was charged with an offence under the bill may raise a defence that the act was “reasonable”. A person could admit that they had intended to influence someone accessing services while claiming, for example, that they did not know that they were in a safe access zone, no matter how extensive the publicity around it had been; that it was a weekend and so they thought that the premises would be closed; that the strength of their belief or their particular circumstances justified the offence; or that they had intended to provide support for women accessing the services and were therefore justified on that basis.

To be clear, it will always be possible for an accused to make those arguments; it is, of course, their right to produce mitigating evidence in their favour and to show that they neither intended to have that effect or were reckless as to the consequences of their actions. However, the defence under amendment 25 would build in potential loopholes from the outset.

I have made this argument several times today, but I must do so again: no other safe access zones legislation across the UK includes such a defence. The Northern Ireland Assembly considered it during the parliamentary passage of its own legislation and rejected it for the reasons that I have just outlined. In addition, it was precisely the absence of such a defence that the Supreme Court was asked to rule on when it considered that legislation. The court held that the offences provided for within that bill, which are broadly similar to those that we are considering, constituted a proportionate interference with the rights of anti-abortion groups, in light of the importance of the bill’s aims. Crucially, the Supreme Court considered that the inclusion of a reasonable excuse defence would impact the effectiveness of its provisions in achieving those aims.

It is the Scottish Government’s view that similar considerations apply in respect of the Abortion Services (Safe Access Zones) (Scotland) Bill. There is a risk that the defence could be used to justify behaviours that otherwise would be caught and therefore would have the precise impacts on women and staff accessing services that we are seeking to prevent. I therefore ask members to resist amendment 25.

I will address amendments 56 and 57, which relate to filming and photography offences, in general terms. When the matter was considered during the bill’s development, it was concluded that the offences as drafted would capture photography and filming.

As I have said throughout this session, the offences have deliberately been drafted broadly to avoid criminalising specific behaviours and to capture any activity that could have the effects outlined in sections 4 and 5. Therefore, if someone was filming or photographing a person accessing or providing services, either recklessly or with the intent of influencing, impeding access or causing alarm, that activity would very likely be caught by the existing provisions.

I do not think that it is difficult to understand why that would be. As we keep repeating, the issue at the heart of the bill is that women are accessing medical care and are making extremely personal decisions. In such circumstances, photography or filming, done with intent or with recklessness, would very likely have one of the effects set out in the offence provisions.

It is not normal practice to provide for an offence where an existing offence adequately covers the relevant behaviour. In this case, the offence of filming or photography is already caught by the offences that we are creating in the bill.

Thank you for your question. I agree with your opening sentiments that it is important that we ensure that people who have been infected and affected are supported as soon as possible.

I share some of the concerns of Haemophilia Scotland and of the Scottish Infected Blood Forum. The amendments that we are discussing come from the UK Government so, sadly, I cannot explain their detail. We have worked as closely as we can with the UK Government and we have had a number of four-nations meetings to discuss the concerns of each of the nations. Despite the concerns that some organisations have raised, not everything will be on the face of the bill. A lot of the work will be done through regulations, on which I see myself and my officials working closely with the UK Government to represent the views of stakeholders and the thoughts of the Scottish Government.

It is really important that we set up the right processes. In the meetings that I have had with the stakeholders in the past year, I have been very clear that we will represent their views, and I have done that in person, in Teams meetings and in letters, as have my colleagues in Wales and Northern Ireland. As I laid out in my response to the convener, my officials are meeting officials from the UK Government’s Cabinet Office and the Welsh Government and the Northern Ireland Executive to ensure that all four nations are represented.