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The point about how the guidance is used and how it can be embedded is important. National consistency always comes up in relation to self-directed support. Which of the activities in the improvement plan will or will not help to address national consistency, and should or could any aspects of SDS be standardised nationally?

Good morning, panel. Audit Scotland has highlighted that waiting time standards

“do not provide a comprehensive picture of postpandemic service performance or recovery.”

What additional measures or indicators could offer a more comprehensive assessment of healthcare performance and recovery post pandemic?

I want to build on the questions that the convener asked about training and awareness in local authorities. A lot of best practice guidance has been written over the past 10 years. What are the panel’s thoughts on the quality of the guidance, and on how it is or is not being used in local authorities? There is a lot of nodding going on. I will pick Donald Macleod first, if that is okay.

How do we balance the need for accountability and the need to capture high-quality data, and how can we have flexibility to adapt and improve indicators and targets? I take on board that many of the targets are not being hit at the moment. How can we use the data so that things are more realistic for people?

Is there any data that we should be capturing to inform the targets and indicators that we are not capturing now? If there is, what data should the Government capture?

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.