Seòmar agus comataidhean

I thank Rachael Hamilton for lodging amendment 8. Although I must oppose it, we had an extremely productive discussion ahead of stage 3, for which I am grateful.

I am in full agreement with Ms Hamilton that safe access zones must be assessed in a way that goes beyond simple numerical analysis, including offence statistics and level of activity outside premises.

From the outset of the process, our aim has been to protect access to healthcare and ensure that those who access or provide services can do so without fear of intimidation, harassment or public judgment. We must find ways to measure how well we are achieving that, in ways that truly consider patient and staff experience. However, I do not think that amendment 8 is the way to do it.

My first concern is that there is already a provision in section 11A for the effectiveness of zones to be reviewed, and that requirement, quite rightly, sits with ministers. That review will also be published and laid before the Parliament.

It is true that operators have judgments to make about whether the zones for their premises offer protection from the specific offences that are set out in the bill, but I do not think that that role should be extended to cover a more general review of effectiveness that requires them to consider different factors. I fear that doing so would put an undue burden on healthcare staff, especially when, as I have said, that responsibility must and ought to be discharged by ministers.

My second concern is the way in which the amendment could potentially cut across the specific instances in which operators must consider the adequacy of protection that is offered by safe access zones. As members are aware, operators may apply to ministers for an extension of a zone for their premises under section 7.

Sorry, Ms White—I will not.

I will start that bit again, because it is incredibly important.

I again thank Gillian Mackay, who has been resolute in her efforts to ensure that the bill is the best that it can be. Her connections across the chamber and outwith it have ensured that everyone’s voice has been heard in a respectful manner. I hope that every single one of us will take a leaf out of Ms Mackay’s book as to how to listen, collaborate and legislate. Her manner is exemplary.

I thank colleagues, too, for the tone of the debate and—as I noted in my opening remarks—the thoughtful way in which members have discussed their concerns regarding the bill with me and Ms Mackay. I will single out a few of the points that have been made, although by no means all of them, given the brief time that I have.

Meghan Gallacher was correct to say that we need legislation that works, and I absolutely agree with Carol Mochan on the stage 2 debate, which was open, honest and very helpful. I hope that the post-legislative scrutiny is treated in the same manner.

I agree with a lot of what Beatrice Wishart said with regard to 82 per cent of Scots agreeing that women should be able to access healthcare safely.

I thank Elena Whitham for her historical and international perspectives and for always bringing it back to intent.

Tess White talked about sensitivity and security for women, and that is at the heart of the bill. She is right to ensure that we strengthen and scrutinise the legislation and I thank her for the amendments that she lodged.

Ross Greer is correct that Parliament has been at its best, and I wish that he had made his point—about the bill creating a ban not on protest but on proximity—earlier in the process, because he is absolutely right about that.

I agree with Monica Lennon’s comments about the courageous and tenacious campaigning of grass-roots organisations and healthcare staff that got us to where we are today.

Sandesh Gulhane talked about balance, and I believe that the legislation has achieved that.

I am pleased that it has been recognised during the debate that the bill is an attempt not to restrict freedom of expression but to safeguard public health and protect the right of women to access healthcare without obstruction. Although it is a small bill, its reach cannot be overestimated, and that is best summed up by Lucy Grieve, who gave evidence on the bill. Lucy was clear that

“the legislation will not only protect abortion patients, but those who have been harassed and intimidated when accessing miscarriage management or for sexual assault support, as well as partners of those accessing care.”

I urge every member to join me in bringing that reality a step closer.

I thank members for meeting me ahead of stage 3 to discuss the concerns that the amendments reflect. Those open conversations testify to the true cross-party working that has characterised the bill as it has progressed through Parliament. I am sure that that will be replicated today.

I turn to Ms Gallacher’s amendment 3. As I explained at stage 2, during development of the bill, it was concluded that the existing offences could capture photography or filming as acts that are intentional or reckless to the effects that are set out in the offence provisions. It is not normal practice to provide for an offence where an existing offence adequately covers it.

Additionally, we must avoid doing anything that would significantly undercut the approach that is taken to offences in the bill. The offences are broadly drafted to avoid criminalising specific behaviours. Instead, they capture any activity that could have the effects that are outlined in sections 4 and 5. The bill does not set out a list of prohibited behaviours, because it is the intended effect that matters. That is essential for future proofing.

It is not difficult to understand why photography or recording could have the prohibited intended effects, because women are accessing medical care and making extremely personal decisions. Consequently, if someone filmed or photographed a person who was accessing or providing services in a safe zone, that would very likely be caught by the existing provisions, provided that it was done recklessly or with the intent of having one of the particular effects.

Amendment 3 also differs from existing offences in significant ways. First, unlike sections 4 and 5, it does not specify that the person who is accused of an offence must be in the zone at the time that the behaviour is carried out, which means that it could extend to behaviour outwith the zone. Secondly, it lacks the intention or recklessness elements, which could make it much broader. It could, for example, apply to a person who simply took a photograph and inadvertently captured someone in a zone attempting to access services. Finally, it requires evidence that action has been taken and directed at particular individuals, whereas sections 4 and 5 require only that the acts are intended to have particular effects or that those effects could occur due to recklessness.

I stress, as I did during stage 2, that I recognise and welcome the intention to increase protection, but I hope that Ms Gallacher accepts—I believe that she does—that the issue was considered during the drafting stage and that the inclusion of the specific offence was deemed unnecessary. I note that she has indicated that she will not press amendment 3, and I thank her for that and very much appreciate the engagement that we had.

On amendment 4, I committed at stage 2 to exploring with Mr Balfour what might be possible or necessary, and I am grateful for the productive discussions that we subsequently had. However, having considered what he seeks to achieve, I again urge him not to move his amendment.

I met the Evangelical Alliance today to discuss the amendment, and I was clear that it is not our intention to prevent those accessing abortion services from receiving spiritual care, nor to prevent those providing such care from doing so. Having fully understood Mr Balfour’s concerns, I think that it is better to rely on the existing protections in the bill and avoid unintended loopholes.

I understand that Mr Balfour is particularly concerned that people who provide spiritual care could be caught by the bill’s offences, and to address that I will say three things. First, there is already an exception in the bill for interactions between someone accessing services and anyone accompanying them with permission. That would apply to family members, friends and, of course, spiritual advisers. Therefore, if a woman seeks spiritual support as she accesses services and invites someone to accompany her and provide it, that person will not commit an offence unless they behave in a way that could either intentionally or recklessly have the particular effects that are set out in sections 4 and 5.

Secondly, if spiritual advisers are offering care to others in the zone who are not accessing abortion services and that private conversation nevertheless covers abortion, that is also very unlikely to be an offence. The exception would be if the conversation was carried on intentionally to have prohibitive effects or was reckless as to whether it had those effects.

Thirdly, and finally, when someone accessing services requests a visit from a spiritual adviser, that, too, would ordinarily be a form of wanted support rather than being an unwanted or unwelcome conversation. Again, where that conversation is true support, is private and is neither intended to have, nor is reckless as to whether it has, any of the effects set out in the offence provisions, such support is unlikely to give rise to an offence.

It is important to note two things in reference to all those scenarios. First, recklessness is a high bar. It means, for example, acting with utter disregard or with a high level of indifference as to the impacts of the behaviour on others. Secondly, I have said that an offence is “unlikely” to be committed because the facts and circumstances will always determine whether that is the case. For example, there may be cases where an adviser goes beyond their support role, does not limit themselves to private conversation or displays very prominent anti-abortion material that could be seen by others.

A specific pastoral exception would also not permit such behaviour, and including one could have the unwanted effect of encouraging others to claim to be offering spiritual care in order to have one-on-one conversations with people accessing services who have not sought support. Even limiting such an amendment to those who are, for example, employed as chaplains or ordained in churches would not entirely remove that possibility but might inadvertently appear to limit the protection for spiritual providers who may not be captured by an exhaustive definition. That could create a loophole for unwanted influence while unintentionally erecting a barrier to those wanting support.

I urge Jeremy Balfour not to move amendment 4. If he does, I ask members to vote against it.

Finally, I turn to amendment 5. I must reiterate the significant concerns that I outlined at stage 2. The amendment runs directly counter to the bill’s aims, as it could allow behaviour to be considered reasonable despite the behaviour meeting the high threshold for the offence provisions. That means that the potential protection that is provided by the bill could be significantly diminished. A person could admit that they had intended to influence someone accessing services but also claim, for example, that they did not know that they were in a safe access zone, no matter how extensive the publicity around it was. They could claim that it was a weekend and that they thought that the premises would be closed. They could claim that the strength of their belief or their own particular circumstances justified the offence. They could state that they intended to provide support for women accessing those services and were therefore justified.

Of course, it will always be possible for an accused to make those arguments; it is their right to produce mitigating evidence in their favour, but including a reasonable excuse defence could create potential loopholes from the outset. As I said at stage 2, no safe access zones legislation across the UK includes such a defence.

In Northern Ireland, such a provision was considered during parliamentary passage and rejected for the reasons that I have outlined. It was the absence of such a defence that the Supreme Court was asked to rule on when it considered the Northern Ireland legislation. The Supreme Court held that the offences in that bill, which are broadly similar to those that we are considering here, constituted a proportionate interference with the rights of anti-abortion groups in the 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 with regard to those aims. It remains the Scottish Government’s view that similar considerations apply here.

I thank Mr Balfour for lodging amendment 5 and allowing a full debate in the chamber on the topic. However, I urge him not to move the amendment. If he does, I ask members to vote against it.

I recognise that Mr Balfour seeks to strengthen safeguards in the bill with amendment 6, and I accept that section 10, to which the amendment relates, requires robust scrutiny. However, I am resisting amendment 6 precisely because I believe that the bill already includes important safeguards and provides for an appropriate level of scrutiny. Those safeguards begin from the moment a change is contemplated.

First, at stage 2, I lodged an amendment to ensure that the powers could be used in a targeted way to cover only individual premises within a class of place, where that would be more appropriate than covering the entire class. As a purely illustrative example, if GP practices were approved as a class of place to provide abortion services, ministers could, if appropriate, extend protection to cover a single practice—or even some, rather than all, practices.

Secondly, as a matter of law, the Scottish ministers must act compatibly with the European convention on human rights. All decisions must therefore be evidence based. Ministers will consider the full circumstances at the time, including the impacts on convention rights, and no additional protected premises can be added unless ministers are satisfied that it would be proportionate to do so. Then, once regulations are prepared, they will rightly be subject to the affirmative procedure and the full scrutiny of the Parliament.

As I set out at the start, I remain of the view that the affirmative procedure is the right approach and provides the appropriate level of scrutiny. The Delegated Powers and Law Reform Committee considered that power at stage 1 and concluded in its report:

“The affirmative procedure appears appropriate given the potential significance of the measures such regulations could introduce. The affirmative procedure will give the Parliament an opportunity to ensure it is content that such regulations strike the right balance between Convention Rights.”

Mr Balfour’s amendment 6, although well intentioned, would, as a matter of practicality, introduce a potentially significant delay before we could provide protection, even though, from the safeguards that I have outlined, we must have evidence that service users and providers need that protection. Also, as a matter of principle, it would send a clear message that we do not think that the usual affirmative procedure provides a robust level of scrutiny and parliamentary oversight. If we accept that in this instance, it will unavoidably set a precedent for other regulations. That is not a step that we want or need to take.

I therefore urge members to accept the careful and considered judgment of the Delegated Powers and Law Reform Committee and to vote against amendment 6 if Mr Balfour presses it.

I am just going on to cover that. As I said, operators may apply to ministers for an extension of a zone for their premises under section 7. They can make such an application when they consider that the size of the zone

“does not adequately protect persons who are accessing, providing or facilitating”

the service from the behaviours that are prohibited in the zones—for example, influencing or causing alarm or distress. There will be a range of factors that operators may take into account in making an application, and those might vary over time. It was therefore considered more appropriate to provide that those factors would be set out in guidance rather than prescribed in the bill. Section 11 allows for that to happen and, in doing so, balances the need for flexibility with the need to support operators to make what might sometimes be difficult judgments. That means that there is already a very clear test set out in the bill that operators must consider before making an application for an extension.

As members will note, Ms Hamilton’s amendment is not framed in the same terms as that test. The reference, for example, to “fear of intimidation” differs from the effects that zones seek to prevent, such as influencing and impeding access. The amendment could consequently add confusion about the assessment and considerations that operators must undertake.

I, too, would like to reflect on what our Parliament has achieved here even before we take the final vote on the bill. We have shown beyond doubt that our Parliament can come together in service of what is right and that our differences, rather than being an obstacle to progress, can improve debate and legislation and bring light rather than heat. That is a profound achievement, given that it has happened over an issue that has the potential to drive us further into entrenched and divided camps, and I offer my sincerest thanks for the politeness, respect and sensitivity that have been shown as the bill has passed through our Parliament. It has been a privilege to participate in this process. If we vote in favour of the bill today, I believe that we should celebrate not only its passing but the manner in which we have reached this point.

The bill is a vital step in ensuring the safety, dignity and privacy of individuals who are seeking abortion services and of the dedicated healthcare professionals who provide those services. The bill is incredibly significant. As Gillian Mackay has noted, the protections are narrowly and carefully drawn; they cover only those places where opposition to abortion focuses directly on women who are taking deeply personal and medical decisions—decisions that can be painful and unwelcome and that should not be subject to public debate, unjustified scrutiny or unsolicited judgment.

Even if the bill passes, the rest of Scotland will remain open for political debate or lobbying around abortion. Within the law, people will be free to protest anywhere else that they choose. Indeed, they will be able to express lawful opposition to abortion in any form that they see fit, and freedom of religion, expression and assembly will remain cornerstones of our democracy. However, in 30 specific zones, the bill will mean that those rights cannot come at the expense of a woman’s right to safety and privacy, which I think is a reasonable compromise.

However, the bill will not simply be passed and forgotten about. It is always an important ministerial duty to ensure that legislation remains fit for purpose, and, thanks to this Parliament’s intervention, the bill has clear review requirements. I give you my assurance that those reviews will be meaningful and I repeat my commitment that, if the bill is passed today, we will begin the work of setting out how that will be achieved without delay. I will go further by committing to the process being open, transparent and inclusive, which will be a reflection of the collaborative and respectful process that has brought the bill into being.

I thank the Health, Social Care and Sport Committee for its diligent work, under the convenership of Clare Haughey, in considering the bill. I know that the complexity and strength of feeling meant that it was not always an easy task for those members, but they set the tone for what followed through their open and honest consideration. For that, along with the committee’s constructive recommendations and insights, I am enormously grateful.

I also thank members across the chamber who have engaged with Ms Mackay and me. Everyone approached the discussions with a clear wish to improve the bill.

Gillian Mackay has championed the issue with grace and compassion, never losing sight of the women and healthcare staff who need the bill’s protection while always respecting the concerns and viewpoints of those who oppose it.

My final thanks go to the women and staff who took a chance and shared their stories, even when doing so was difficult and the outcome was uncertain.

When I opened the stage 1 debate, I quoted Edwin Morgan’s poem “Open the Doors”. It therefore seems fitting that I do so again:

“don’t let your work and hope be
other than great”.

Those who told their stories certainly did not fail in that regard. Soon, we will have an opportunity to requite them. I am sure that we will take it and vote for the bill.

As I set out in my opening remarks, it has been a privilege to support the bill. It is unacceptable that anyone who is using or providing abortion services should do so with the fear of intimidation, judgment or unwanted influence. In a few moments, I hope that we will be enshrining that principle in law, providing the protection and comfort that Maggie Chapman spoke about.

I have worked with a dedicated team of officials who have supported me throughout the process. When I was appointed as Minister for Public Health and Women’s Health, the Government’s groundwork for Gillian Mackay’s bill had previously been led by Nicola Sturgeon, Humza Yousaf and Maree Todd, to all of whom I give my heartfelt thanks.

I had much to learn, but thanks to my officials’ calm and considered approach, I was able to ask questions and get into the fine detail of the legislation, so I thank them. I again thank Gillian Mackay, who has been resolute in her efforts to ensure that the bill is the best that it can be. Her connections across the chamber and outwith it have ensured that everyone’s voice has been heard in a respectful manner. I hope that every single one of us will take a leaf out of Ms Mackay’s book as to how to listen, collaborate and legislate.

I agree with Ms Mackay’s views on the amendments, so I will not repeat what has already been said.

The bill provides for the ability to delegate both the review and reporting functions. I therefore welcome and support the clarity that amendment 7 seeks to provide.

The Government has always been clear in our commitment to transparency and to ensuring that Parliament is given its rightful role in the scrutiny of legislation. That is the aim of amendments 10 and 11, and I am happy to support them. I see, too, that the ability to conduct a review every three years would ensure that the legislation remains proportionate and in line with its overall aims.

Finally, I do not support Ms White’s amendment 9, although I very much appreciate the conversations about it that she and I had. The amendment seeks to set in stone specific statistical detail that is to be included in the report. I understand the reasons for including data on offences, but I am not convinced that doing so would provide a full picture of the operation of the act or its effectiveness. Any reporting needs to be able to balance the statistics with anecdotal evidence and should be done in the round, as opposed to relying solely on figures.

As Ms Mackay has already explained, crime statistics are routinely reported, so that information should be available through other routes. Tess White’s amendment 10 already provides for consultation with enforcement agencies, as well as operators and other such persons as are considered appropriate, and my view is that the information needed to provide a truly meaningful report can be captured through that route. In my previous discussions with Ms White, that has been her intent, but amendment 9 does not provide for that. I therefore join Ms Mackay in urging Ms White not to press that amendment.

I absolutely recognise that there are inequalities in the uptake of bowel screening. The Scottish Government has been investing to try to reduce those inequalities and ensure that more people from the diversity of people in Scotland take part in the bowel cancer screening.

Scotland is the only United Kingdom nation to fully adopt the United Kingdom National Screening Committee’s recommendation to screen all individuals aged between 50 and 74. The UK National Screening Committee has not recommended a specific threshold at which individuals should be referred for colonoscopy, but Scotland has the lowest referral threshold in the UK.