Seòmar agus comataidhean

As the minister noted, there is a significant amount to cover in this group. In the interests of maintaining momentum, I will not repeat what the minister has already said, but I apologise for the length of the comments that I am about to make. I will use my time to cover amendments 24, 21, 22 and 23, and I will touch on the amendments relating to photography in summing up.

Amendment 24 is on silent prayer. I have listened carefully to the arguments for an exemption since the bill was introduced, and I hope that members will believe that I have thought long and hard about them. That is because, as I have said from the outset, I recognise the importance that prayer can play in the lives of people of faith. I have never sought to minimise or undermine that, and I do not believe that the bill does either. On the other hand, having considered the matter, I am convinced that an exemption for silent prayer would undermine the bill and what it seeks to do.

I urge members to vote against the amendment on two grounds: first, it is unnecessary; and secondly, it would fundamentally weaken the protection that the bill seeks to provide to women and staff.

On the first point, as I highlighted during the stage 1 debate, the bill does not prohibit specific behaviours in a safe access zone. Silent prayer is therefore not in and of itself prohibited. In reference to Mr Balfour’s example, he would not be breaking the law in quiet personal reflection. To put it another way, the offences are not about what you are thinking but about what you are doing and the effect that that has on others.

When Police Scotland gave evidence at stage 1, it said that it was not going to police what people are thinking. I wholly support that. However, amendment 24 would require enforcement agencies to try to do exactly that.

I hope that some illustrations will help here. If someone prays silently without outward sign on their way to, or even outside, a hospital or at a bus stop—to use Mr Balfour’s example—for a few minutes, it is very unlikely that anyone would be aware that they are silently praying. If nobody knows that someone is praying and nothing in their conduct is capable of having the effects on women or staff that the bill seeks to prevent, it is unlikely that any offence could be committed.

However, if someone stands silently praying for a long time while deliberately looking at women who are accessing an abortion clinic or, for example, they stand with a sign, as we see currently, they might be committing an offence. That is not because of the prayer; it is because of the sense of judgment. It is about the effects of that conduct in positioning themselves in that location on women and staff who are accessing the clinic. An offence would be committed only when the full facts and circumstances demonstrated that the behaviour was intended to have those effects or was reckless as to whether it did. That is why an exemption is unnecessary.

As I said at the start, an exemption is not only unnecessary; it would be damaging. Setting silent prayer aside, amendment 24 could have the unintended consequence of creating loopholes for other conduct. As I mentioned earlier, someone could simply stand for hours looking at women and staff and monitoring their comings and goings, and the exemption could provide cover. That in itself might be enough to reject amendment 24. Setting that aside, conduct that gives rise to the harmful effects on women and staff that the bill seeks to prevent should not be permitted simply because someone is silently praying at the time.

I understand that there are people who do not think that silent prayer could have any of the effects that are prohibited in the bill. I must remind members that we have heard evidence from women and staff that they feel intimidated and judged when they try to access or provide healthcare services and encounter people who are praying outside. I know that this is obvious, but I must emphasise the point that people are positioning themselves outside those services.

That is probably happening right now when people are accessing medical care to which they are entitled, when they are making personal decisions, and when many of them will already feel vulnerable or afraid. In those circumstances, they are a captive audience—I have referred to that already. They have no way of escaping the presence of those who are praying. They cannot simply go to another venue or come back another day. In contrast, as Ross Greer pointed out during the stage 1 debate, those who oppose abortion can pray anywhere else, including just up the road. We are talking about a narrow restriction that will have the profound impact of affording women and staff dignity, privacy and respect when they need that most.

I remind the committee that we are not the only body to consider the matter, and that others before us have accepted that silent presence can have a negative impact. The Supreme Court noted in its consideration of the Northern Ireland legislation that

“Silent but reproachful observance of persons accessing”

an abortion clinic

“may be as effective, as a means of deterring them”

from getting an abortion

“as more boisterous demonstrations.”

In Livia Tossici-Bolt v Bournemouth, Christchurch and Poole Council, which considered a public space protection order creating a safe access zone around an abortion clinic, the court commented:

“The protest activities described in the evidence, including silent prayer ... were not taking place in a shopping centre or park or in a church but outside a clinic to which women were resorting at particularly sensitive and difficult moments in their lives ... those activities ... were, quite reasonably, interpreted as an expression of opposition or disapproval.”

I hope—indeed, I trust—that, in this room, the testimonies of women and staff, including those that were provided in evidence to the committee, will be given the same weight as they were in those cases.

Once we accept that silent prayer can be harmful, we must also accept that exempting it fails to deliver adequate protection. That certainly would not provide the level of protection promised across the rest of the UK. An exemption for silent prayer was proposed as an amendment to the Public Order Act 2023 and was rejected. Likewise, there is no exemption in the legislation in force in Northern Ireland.

There is no way around the reality. If we agree to amendment 24, we will be saying that we are comfortable leaving women and staff in Scotland more vulnerable than their counterparts across the UK. I urge members of the committee to prevent that from happening and, instead, to vote against that amendment and ensure that women and staff in Scotland receive the protection that the bill as introduced promised.

I turn to Mr Balfour’s and Ms Gallacher’s amendments to section 5 of the bill. I am grateful for the challenge that that section has received. It is right that it should be scrutinised carefully, given its potential impact. However, as I set out to the committee during stage 1, the impact of the provision is carefully limited, and it is vital to ensuring that the protection that we are seeking to provide is robust.

Before I turn to the amendments, I will first clarify the purpose and scope of section 5. Contrary to some misunderstandings, the section does not extend a safe access zone indefinitely. Section 5 applies only to areas inside the 200m boundary of the zone; outwith that boundary, people are free to conduct any lawful anti-abortion activity in any location that they choose.

I must also impress upon members that, even within the zone, wholly private actions will not be subject to sanction. Private conversations in homes and in restaurants, religious lessons in schools, and sermons and hymns in a church would be unlikely to meet the conditions for an offence that are set out in section 5. Instead, an offence would likely be committed where either an activity or behaviour is deliberately done in an outward-facing public way for the purpose of influencing, impeding access or alarming someone who is trying to access or provide services, or an activity is done with an utter disregard as to whether it could have those consequences or there is a high level of indifference to the consequences.

Crucially, whether the activity or behaviour constitutes an offence under section 5 will be an operational decision for enforcement agencies. Police Scotland has already explained to the committee how it would approach enforcement.

I hope that that, combined with the targeted scope of the provisions, provides the committee with some reassurance. However, I recognise that the legislation impacts on rights, and I understand why, at first sight, the offences in section 5 may cause members more concern than the offences that are created by section 4.

The provisions have been considered carefully and have been included only because they are necessary. Mr Balfour’s amendment 21, which would remove section 5 entirely, would result in a significant loophole that would allow anti-abortion activities to take place within a safe access zone. That is clear from evidence that the committee has heard. Colin Poolman provided a hypothetical example of an organisation setting up its headquarters within a zone and then using that building to conduct anti-abortion activity that is designed to target women and staff. He commented that that would defeat the purposes of the bill. If section 5 were to be removed from the bill, that hypothetical example could happen.

That may seem to be an unlikely threat—except that the committee also heard from Professor Sharon Cameron, who explained that we already have examples of anti-choice messages being projected on to Chalmers sexual health centre from a property across the street. Without section 5, there would be nothing to protect against such activity being carried out in private places within a zone.

In amendments 52 to 55, Ms Gallacher provides for the possibility of that protection. I thank her for recognising that that is important. However, the effect of her amendments in practice would still be to diminish the bill.

As I have said throughout the process, a key aim of the bill is to prevent harm. However, those amendments would, at the very least, mean that, on day 1, public-facing activity of the kind that I have already described would be possible within safe access zones, until such time as Parliament passed regulations.

Mr Balfour will understand that I am a marine biologist, not a lawyer, so my opinion on whether that would be lawful is potentially unhelpful. I have laid out in my comments previously that the continuing effect has to be taken into consideration. Some of the protests that we have seen have had an impact on staff, who have been concerned about coming to their work, and on patients, who have been concerned about attending appointments the following day. We have seen activity outside the Sandyford clinic over weekends that we know, anecdotally from staff, caused people to delay treatment or to cancel and rearrange appointments.

Dr Gulhane made the point that services could be closed to patients but staff members could still be on the premises to carry out non-clinical duties that are, nonetheless, vital for the facilitation and provision of services. I believe that the current provision provides operational flexibility for enforcement agencies to consider the full facts of the case before deciding whether an offence has been committed. A definitive exception would mean that staff working on the premises when they are closed to the public would have no protection.

I turn to Mr Balfour’s comments about clinics ordinarily running from 9 to 5, Monday to Friday. On a particular weekend, anti-abortion groups could organise a protest, but, on that weekend, unbeknown to the groups, the premises could have extended its opening hours to allow staff to see patients and clear waiting lists. Criminal sanctions would apply, and those attending the services would potentially be exposed to exactly the behaviours that the bill intends to stop before the situation could be communicated to the anti-abortion groups and the activity ceased. That is a scenario that really could happen if we pass the amendment, and that is surely a scenario that none of us wants to see.

The only way in which a situation could potentially be avoided would be by each protected premises advertising its opening hours, including any changes. That would be an additional administrative burden on staff, and it would potentially draw attention to exactly when patients and staff can be targeted. It still would not address the situation when services are closed to the patients but staff are still in attendance.

The result would be a system that reduced protection and vastly increased the difficulty of communicating and understanding when zones apply. That would be unfair for staff and patients and for those who may be subject to criminal sanctions. I therefore urge committee members to vote against amendment 23.

On amendments 56 and 57, I am grateful to Rachael Hamilton and Meghan Gallacher for their conversations about those provisions. I am still of the view that listing individual behaviours is something that we might not want to do, and I believe that those offences are implicitly covered by the bill. I am grateful for the opportunity to discuss and highlight that they are covered by the bill and that those behaviours are not acceptable outside protected premises.

I recognise that the intention of both Rachael Hamilton and Meghan Gallacher is to make the bill better. However, I believe that beginning to list behaviours runs contrary to the work that we have done thus far. However, like the minister, I am happy to have further conversations ahead of stage 3.

I appreciate that intervention from Dr Gulhane. The problem that I have is that various people have given me evidence of their particular situation—you could cover just about every behaviour that happens outside clinics—and they believe that that is the most intimidating thing that could happen. For me, singling out particular behaviours becomes difficult when different people who have experienced such protests place different weight on different behaviours.

I absolutely agree that the recording and sharing of people’s images, which we have seen at Sandyford with respect to one staff member, can be particularly damaging for those staff. If Dr Gulhane has a particular interest, I am happy to open up a wider discussion among more members on filming and photography in addition to the conversation that the minister and I will have with Rachael Hamilton and Meghan Gallacher.

Finally, I turn to amendment 22. I will finish in a minute, convener—I promise. As I noted in my evidence to the committee, it is unlikely that the activities of chaplains or spiritual advisers would be caught by the bill. In general, the role of hospital chaplains is to listen to and support those who are considering an abortion rather than to provide advice. Such support is not considered to be intended to influence decisions. It will have been requested by the women rather than its being an unwanted conversation, and, as such, those circumstances appear not to be likely to result in an offence.

However, I recognise that the bill contains a specific exemption for healthcare and that there are parallels with chaplaincy care. I should also note that we have received a request from the Royal College of Nursing to look at that exemption for healthcare staff, and we are looking at that. There were logistical issues with the timing of that request for stage 2.

Women choose to speak to healthcare professionals and may be persuaded to have or not have an abortion based on the advice that they are given, even if the advice is not intended to persuade the women one way or another. I also recognise the concern about women being dissuaded from seeking chaplaincy or spiritual support, so I am happy to put the matter beyond doubt. However, it is important that that applies to all faiths, so I will consider whether a further amendment might be needed at stage 3 to make that clear. Therefore, I urge Mr Balfour not to move his amendment and to work with me to explore lodging an amendment at stage 3. If Mr Balfour moves his amendment, I ask members to vote against it.

I recognise the need to restrict no more than is necessary the rights of those who wish to take part in anti-abortion activity outside services. If I thought that amendment 43 could be safely included and the bill would still provide the necessary protections, I would gladly encourage the committee to vote for it. However, as was outlined at stage 1, considerable work was undertaken between the consultation and the introduction of the bill to ensure that the zones would be the right size.

At the stage 1 debate, I noted that we identified that we needed to address factors that could provide a captive audience. That work contributed to the size of the zone being set at 200m. Therefore, accepting amendment 43 would, to a very large extent, render safe access zones somewhat ineffective from day 1.

The stage 1 report refers to scoping work that shows that 150m is

“sufficient for all but one ... premises.”

As I acknowledged during my stage 1 remarks, I consulted on 150m, too, because that size was in line with the size of zones that were then in place in a number of other jurisdictions. However, the consultation rightly did not mark the end of the work around that issue. During the bill’s development, the size of the zone was rigorously examined to ensure that it could meet the aims of the bill while remaining proportionate. That was a vital process. I assure all members that, had that work shown that 150m was more than necessary, the size of the zones would have been 150m.

I am repeating much of what I have already said. We assessed the sites for all protected premises and identified places where people who access or provide services would be a captive audience—for example, entrances and exits, the nearest bus stops and the places where activity has already had negative impacts.

We also concluded that there must be a buffer around each place to ensure that women and staff could not be easily called out to or shown images. That made it very clear that 150m would not be sufficient for a number of premises beyond the Queen Elizabeth university hospital—for example, the Borders general hospital and Dumfries and Galloway royal infirmary. In fact, amendment 43 would mean that, at more than one third of sites, women would not receive the protection that they require and the bill’s aims would not be met. Therefore, in the strongest terms I urge committee members to vote against the amendment.

I am more than happy to have a conversation with Mr Balfour to consider how we can allay those concerns, particularly for those faith-based communities that may be in safe access zones.

Before I conclude, I want to make a couple of other points. First, limiting public-facing activity or behaviour is not unique to this bill. There are already circumstances in which actions in private places can constitute a breach of the peace. As with this bill, the circumstances justify the restrictions.

The Public Order Act 2023 provides that a safe access zone includes any location that is visible from public spaces or from the

“curtilage of an abortion clinic”.

Draft Home Office guidance on safe access zones under that act says:

“a sermon about abortion inside a church within a Safe Access Zone, which does not affect persons outside who are accessing, providing, or facilitating services, would not be unlawful ... However, if people lean out of their windows or stand on their driveways and call out comments to passers-by about abortion, they could commit an offence.”

I ask the committee to vote against those amendments if they are moved to ensure that women and staff in Scotland have parity with those elsewhere in the UK.

Mr Balfour’s amendment 23 would create an exception to offences when actions are carried out while premises are closed. I must urge the committee to reject that amendment on the grounds that it would lessen protection for patients and staff and add significant administrative complexity.

As I have noted already, the offence requires that actions are carried out with the intention of having the effects that are set out in sections 4 and 5 or the individual is reckless with regard to whether those effects occur. The person who is carrying out the activity must be in the zone, and they must be intending to influence someone who is also in the zone at the time—unless the act in question has a continuing effect. Therefore, if the behaviour occurs when premises are closed and no one could be said to be on their way to access or provide services, the actions are unlikely to be an offence unless, as I have said, they have a continuing effect.

Absolutely.

For all the reasons that I have outlined, I will press amendment 39. In the light of the constructive conversation that we have had, I hope that the committee will support it, and I hope that Ms White and Ms Hamilton will not move their amendments. If they do, I ask the committee to vote against them.

I again commit to meeting Ms Hamilton and Ms White to explore what other steps we could take to strengthen the bill ahead of stage 3.

Amendment 39 agreed to.

Amendments 50 and 58 not moved.

Section 12 agreed to.

Section 13—Interpretation

Amendments 40 and 41 moved—[Jenni Minto]—and agreed to.

Section 13, as amended, agreed to.

Sections 14 to 16 agreed to.

Long title agreed to.

We have had on-going dialogue with everyone who will be impacted by safe access zones. I understand Rachael Hamilton’s interest in the difference between the 150m and the 200m distance, where that came from and how it interacts with the ability to extend. We heard very strongly from people that they wanted a consistent distance across all sites—at least, to begin with; some behaviours may mean that we have to extend at different places, and some things, which I cannot predict, may mean that, at some time in the future, a reduction may be appropriate at certain sites.

Once the bill is passed, there will be on-going engagement to understand those impacts, as well as the potential impacts if an extension is to be made. I am sure that there will be a great deal of scrutiny around the first extension or reduction of a zone. I very much welcome the Parliament’s scrutiny on that. On-going dialogue and engagement are important. I hope that that has provided the answer that Rachael Hamilton was looking for.

To go back to the amendments at hand, I am a great advocate of the democratic accountability of the Parliament but, with the best will in the world, I, as a member of that Parliament, cannot guarantee that we could act quickly if affirmative regulations were required. Even in normal times, affirmative regulations could introduce a delay of many weeks. Once a recess is factored in, that could, on some occasions, stretch to months—months during which people could be prevented from expressing opposition to abortion or could even be charged with offences in places in which a zone is no longer needed, or during which women could be subject to exactly the kinds of behaviour that we agreed at stage 1 to be intolerable.

Similar concerns apply to amendment 5. As I outlined, we do not know what changes lie ahead and, therefore, what sizes of zone will be needed. I appreciate the effort to manage that uncertainty by allowing the size of zones to be set by regulations. However, again, if evidence in early July suggests that 260m is needed when 250m has been set as the maximum, or if 90m turns out to be sufficient when the minimum is set at 100m, the use of regulations would mean that it would be months before the change could be made. I do not think that we can be comfortable with such a solution.

I stress that the speed that I seek is for the implementation of changes only after a rigorous process of evidence gathering has taken place. The minister may wish to say more on that, but we must remember that the Government will always be bound to act proportionately. It is my understanding that that means that it will carefully review the evidence to ensure that any extension or reduction is compatible with convention rights and is based proportionately on the applicable circumstances. There is now the added safeguard that consultation will always be a vital part of the process. Any decision to extend or reduce will therefore have been thoroughly considered, and its proportionality will have been assured.

I recognise, however, that my assurance may not be sufficient. That is why I have lodged amendment 34, which, as I have said, requires ministers, within seven days of publicising a change to the size of safe access zones, to lay a report before the Parliament setting out their reasons for making such a change. I believe that that amendment strikes the right balance. It still allows ministers to act swiftly when needed, but it also ensures that the Parliament has the opportunity to understand and interrogate the evidence and rationale for any change.

I hope that amendment 34 shows that I have listened to feedback and have looked for compromise, even where I have been unable to go as far as all members would like. I ask members to trust that, for as long as I am a member of this Parliament, I will always be intensely interested in how zones are applied. I would not, and could not, have lodged the amendment if I thought that my own voice would be lost in the process. In that spirit, I ask members to vote against Mr Cole-Hamilton’s amendments and ensure that the possibility to act swiftly remains, while ensuring that the Parliament has its place.

I move amendment 31.

I thank everyone for their contributions on this set of amendments. I appreciate Rachael Hamilton’s comments about there potentially appearing to be a contradiction between moving quickly to react to scenarios and taking our time for review. In my view, there are two main times of year when a large amount of activity takes place at the sites in question. If we take too few of them into account and do not allow time for the behavioural change to take place, that could reduce the level of scrutiny that we might be able to undertake in a post-legislative setting. That is why I believe that a two-year period is better than a one-year period. We will happily cover—

Absolutely. I appreciate the arguments that have been made for a review period of a year. However, my other concern around a yearly review is the burden that that would place on committees, in particular. It is likely that the Health, Social Care and Sport Committee would have to do the review. Given how crowded committees’ work programmes often are, a requirement to carry out an annual review could displace other pieces of work. Others might take a contrary view. As Rachael Hamilton mentioned, it is a difficult landscape.