Seòmar agus comataidhean

I will be brief. I echo what Ms Mackay has said. I believe that amendment 39 responds to the stage 1 recommendations by providing for a robust and comprehensive review that will give Parliament its place and make its findings public.

I will address the point that Rachael Hamilton and Tess White made about the two-year reporting period. The two-year reporting period would not prevent action from being taken in the meantime to extend or reduce zones, as needed. In addition, I gently point out that ministers always keep legislation under review. That is an on-going process.

I urge members to support amendment 39 by voting for it, and I extend an offer to discuss the matter further with Ms Hamilton and Ms White if they feel that their intentions are not met by Ms Mackay’s amendment.

I will finish there before my voice disappears.

Thank you, committee members, for your stage 1 consideration. This is a complex subject area and I am grateful for the sensitive and thoughtful way that you have all approached your consideration. I look forward to a similar discussion this morning.

I will turn directly to amendment 42. My reasons for asking the committee to vote against the amendment are largely practical. Purpose clauses in Scottish legislation have historically been used only in exceptional circumstances and there must be compelling reasons for their inclusion. I note that Carol Mochan raised that matter.

Although I am grateful to Ms Hamilton for setting out her reasons for seeking to do that in the bill, I am concerned that the inclusion of such a section might have consequences that would go beyond what she has set out this morning. The purpose of any bill, no matter the complexity of the subject matter or the rights that are impacted, is to change the law, and every section should further that aim. That is not simply a semantic argument about good drafting; it goes to the heart of how bills are applied in the real world.

All sections should have clear legal effect and be capable of interpretation by a court. That being the case, a section that is not intended to have legal effect should not be included. Bills are not the place to set out policy intent or ambition; there are other opportunities for that, such as policy or strategy documents. Conversely, including a section means that we must accept that it might, in the future, be expected to have legal effect. Therefore, a purpose clause must be the subject of the most careful drafting to ensure that it does not conflict with the other sections of the bill.

Without doing so, there is a risk that its legal effect might conflict with the powers and duties in the bill or be read as serving as an additional legal test for the exercise of duties. For example, in this instance, the purpose refers to “fear of intimidation”, which differs from the offences that are set out in sections 4 and 5 and the tests in sections 7 and 8, which set out when it is appropriate for ministers to extend or reduce a zone. Its inclusion could therefore introduce uncertainty around how ministerial powers to reduce or extend a zone could be exercised or with regard to how the courts interpret the offence provisions. Those are significant uncertainties to introduce. Therefore, if the purpose is not intended to have legal effect, it should not be included, and I urge Ms Hamilton not to press the amendment.

If the purpose is intended to have legal effect, I must urge the committee to vote against it on the grounds that it may, at best, create uncertainty with regard to how the law is to work in practice and, at worst, be interpreted in ways that result in the law being implemented in a manner that was never intended.

I welcome Emma Harper’s amendments, which are clearly aimed at ensuring that this important legislation can be understood by everyone who might be subject to its provisions. As members have heard, none of the amendments in the group is contentious. They all have the same aim, which is to provide clarity. Therefore, I ask members to support all the amendments in the group.

Amendment 8 agreed to.

I am happy to take it now.

I will continue with my response, as I think that it will answer Ms Gallacher’s point.

I must impress upon the committee that the offences have been drafted to avoid setting out a list of prohibited behaviours. It is the effect that matters—that is essential to ensuring that the bill remains future proofed. We must avoid doing anything that would significantly undercut that approach, otherwise the very situation that we have worked so hard to prevent might arise—that is, that we end up introducing doubt by covering one activity and not others.

I thank Ms Hamilton and Ms Gallacher for their offers. In Ms Gallacher’s second contribution, she talked about the crossover and, in some respects, the separation between the two amendments. I am content to meet you both to discuss the issue further, if you agree not to move your amendments today.

I apologise, convener—I have spoken for some time and I note that Ms Mackay intends to speak to a number of other amendments. As a result, I will limit myself to briefly setting out the Government’s position on them.

Amendment 23 is unnecessary, because of the way in which the bill is drafted. The person carrying out anti-abortion activity that is capable of being caught by the bill must already be in the zone at the same time as another person trying to access or provide services, unless the act has a continuing effect. The amendment, therefore, would be unworkable in practice.

Amendment 24 is unnecessary and would weaken the protections in the bill. As silent prayer is not in itself an offence under the current provisions, it does not need to be exempted. Moreover, doing so could allow conduct that has been shown to have the negative impacts that the bill seeks to prevent and create loopholes that could exempt other behaviour beyond silent prayer.

Turning to amendments 21 and 52 to 55, I would just add a point of clarification on amendment 21. The safe access zone does not include indoor spaces, including schools or places of worship. I hope that that gives Mr Balfour some clarity.

Amendments 21 and 52 to 55 would cut across one of the bill’s key aims—that is, the need for a preventative approach. Amendment 21 seeks to remove section 5 entirely, while amendments 52 to 55 would require regulations to be laid and approved before women and staff could be guaranteed protection within a zone. Until those regulations were passed, conduct that was intended to be public and to have particular harmful effects could be carried on. Under Mr Balfour’s amendment 21, there would be no scope to prevent that.

I urge members not to support the amendments in this group.

I know from conversations that I have had with Ms Gallacher that she did not lodge amendment 51 lightly and that she is aware of the complexities of the issue. Ms Mackay will speak about those complexities, particularly as regards the concerns of service providers. I will say only that I also have those concerns and that I share Ms Mackay’s hesitancy to overrule service providers when there is some doubt about the effectiveness of signage.

I want to talk about what the bill already requires and how that will be supplemented by the Scottish Government. Together, those things already represent a considerable package of efforts to ensure that people who are affected by zones will be made aware of them and their effects. First, as members are aware, the bill already requires that Scottish ministers publish and maintain a list of all safe access zones in Scotland. The list will include not only the name and address of all premises, but also maps that clearly identify the zones. As we know that anti-abortion groups tend to be well organised and often rely on online engagement to share information and plan activity, we believe that maintaining such a list represents a robust means of drawing attention to zones.

The Scottish Government has also committed to a targeted publicity campaign. That will include writing to known anti-abortion groups to make them aware of safe access zones and the criminal sanctions that will attach to activity in relation to them that would result in an offence. We continue to work through the details of the full campaign, but it is likely to also involve leaflet drops to residents within the zone and notices in public venues such as GP surgeries.

Finally, Police Scotland has told us of the approach that it anticipates taking to the policing of zones. It will involve a graduated response, beginning with engagement, explanation and encouragement before any enforcement action would be taken.

For all those reasons, I am of the view that signage would do little to raise awareness of zones that will not be achieved by other means, and therefore amendment 51 in general is unnecessary.

I thank Ms Mackay for setting out so clearly her reasons for lodging amendments 31, 33 and 34 and for opposing Mr Cole-Hamilton’s amendments.

I, like Ms Mackay, am grateful for Mr Cole-Hamilton’s support for the bill. I know that he has a sincere wish to ensure that it offers women and staff meaningful protection, both now and in the future. I believe that Mr Cole-Hamilton’s amendments reflect that, and I understand his wish to ensure that the Parliament will always have oversight of how ministers use what are, I admit, significant powers.

However, I fully support the arguments that were made by Ms Mackay. As Mr Cole-Hamilton knows only too well, having lent his voice to the cause for a number of years, the work to bring the bill to fruition has not always been easy. Having worked hard to ensure that the bill offers adequate protection, and having taken the time to assure ourselves of its fair balance between competing interests, we must now ensure that we can preserve both. That means having in place a process that will allow us to act without delay where the evidence tells us that some or all zones are no longer fit for purpose. I will not go over the reasons why that is so important again, but I confirm that Ms Mackay’s understanding of the requirements on the Government is correct.

Acting compatibly with the European convention on human rights is an obligation on ministers, not an optional extra or a matter of best practice, as I have said before. That means that every decision on using the powers in sections 7 and 8 of the bill would require the most rigorous scrutiny, by considering all available evidence and taking into account the whole circumstances. That would hold true whether we were considering one zone or all zones and whether the change was 5m or 50m. That also means that a limit on zone sizes is inherent in the process. If ministers act arbitrarily and extend a zone based on reasons that are not evidence based and that either infringe rights of freedom of expression, religion or assembly more than is justifiable, or do not go far enough to protect the article 8 rights of women and staff, they would not be acting compatibly with the convention. If we fail in that duty, we—rightly—can and would be held accountable.

By lodging amendment 34, Ms Mackay has ensured that the Parliament and anyone else with an interest will be able to scrutinise the degree to which we have discharged that duty. I hope that members will embrace that compromise and vote to accept amendments 31, 33 and 34, rather than compromise the bill by accepting Mr Cole-Hamilton’s amendments, well intentioned though they are.

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.