Seòmar agus comataidhean

Thank you, convener. I thank Mr Cole-Hamilton for considering the extension and reduction of safe access zones in depth and for lodging his amendments. I know that he has genuine interest in the topic.

For the reasons that I have already outlined, I ask Mr Cole-Hamilton not to move amendments 1 to 5. If he does, I ask committee members to vote against them. I hope that members will recognise the layer of additional oversight that my amendments bring and will vote for them.

Amendment 31 agreed to.

Amendment 47 moved—[Emma Harper]—and agreed to.

I am grateful to the minister for the amendments that she has lodged. In particular, I am fully supportive of the increased flexibility that amendment 36, if agreed by the committee, will provide if there is a need to protect additional kinds of premises in the future.

As I have always said, my aim is to protect women and staff, and I do not wish to infringe on other rights any more than is necessary. I am pleased that amendment 36 will allow a targeted approach, if appropriate.

I also support the minister in urging members to vote against amendments 35, 37 and 38. I have been appreciative of Sandesh Gulhane’s consideration throughout the process. As the minister noted, he prompted reflection on the scope of section 10 in the bill as introduced and the lodging of amendment 36. However, I cannot agree that we should pass the bill as if services will remain static and behaviour will never change.

Likewise, I agree with the minister’s comments on amendments 35 and 37. The Parliament will have a prominent role in scrutinising any expansion to the definition of “protected premises”. It therefore seems extremely ill advised to tie our hands by ruling out specific kinds of premises regardless of circumstance.

Others have mentioned reopening and amending primary legislation. As everybody knows, that would take time, during which women would be intimidated or harassed all over again. That is particularly the case given that, as already discussed, amendment 36 also means that individual premises can be specified if that is more appropriate—for example, in cases in which only certain premises provide the services and a blanket approach is not necessary.

I want women and staff in the future to benefit from the protections that we are considering and I hope that the committee will agree.

I will be brief because I support the amendments and am grateful for the improvements that they will make to the bill. I encourage members to vote for the amendments in the group. In particular, I thank Ms Harper, not just for her amendments, which I believe add clarity, but for her support over the years. She has long championed this issue, and I am grateful for her part in this process today.

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.

I am absolutely willing to look at it. I wanted to respond to Rachael Hamilton’s comments and to set out why I believe what I have proposed is the right way to do it. I would be more than happy to explore in a separate conversation—which would allow us to have a longer discussion—what it is that people are looking for.

There is little to be said on my amendments 31 and 33 that I did not say when, in the stage 1 debate, I committed to introducing a consultation requirement. As I said then, I followed precedent when the bill was introduced by not including such a requirement, on the ground that consultation would follow as standard practice if there was any consideration of extending or reducing the size of a safe access zone. However, in recognition of the complexities and sensitivities surrounding the bill, I introduced those amendments.

The amendments are straightforward. Together, they provide that when the Scottish ministers are deciding, of their own accord, whether to extend or reduce the size of a zone, they must consult operators, or persons representing their interests, as well as any other persons whom they consider appropriate. Where the extension follows a request from an operator, the consultation requirement still applies to any other persons who are considered to be appropriate. I believe that that satisfies the calls in the committee’s stage 1 report, and I hope that it demonstrates my commitment to strengthening the bill in response to your scrutiny wherever possible.

In recognition of the strength of feeling around the use of reduction powers, I have gone further by lodging amendment 34, which requires ministers to lay a report before the Parliament within seven days of publicising a change to the size of safe access zones. In that report, they must provide their reasons for making such a change. As I will set out shortly, I think that that strikes a better balance than Mr Cole-Hamilton’s amendments, which I now turn to.

As a point of process before I address the substance of the amendments, I must note that, if passed on their own, amendments 2 and 4 would entirely remove the powers to extend or reduce a zone. I know, and have always valued, Mr Cole-Hamilton’s support for the bill, and I do not think that that was his intention when lodging the amendments. Amendments 1 and 3 would amend the relevant sections in the way that I believe he wishes. I therefore hope that he will not press the other two.

Taken together, amendments 1 and 3 will mean that any extension or reduction would require to be made by regulations that would be subject to approval by the Parliament, while amendment 5 would require ministers to set minimum and maximum zone sizes by regulations, which would also be subject to affirmative procedure.

As I noted in my stage 1 response, I understand entirely the motivation behind amendments 4 and 5 and the understandable concern that the Parliament should not be excluded from the process of changing zone sizes. Nonetheless, I will reiterate my reasons for my believing that the committee should not support the amendments that Mr Cole-Hamilton has lodged. The reasons for having those powers are well understood by now, so I will only briefly highlight why they are important. We do not know how services will operate in the future, or how anti-abortion groups might choose to express their opposition outside those services. We must be able to extend zones if evidence tells us that what we have is no longer effective in meeting the bill’s aims, or to reduce them if the evidence tells us that the level of protection that we currently have goes too far.

The powers in the bill provide that flexibility but, crucially, as drafted, they ensure that ministers can act quickly. As we have heard, that is supported by those who are campaigning for the bill.

As I have explained, if needed, a reduction must be made without delay, because individuals would otherwise be subject to criminal sanction when that is unnecessary, which would breach their convention rights. Equally, if ministers have evidence that one or more zones do not offer enough protection, they must act quickly to ensure that women do not have to wait for their rights to be protected.

I am a full advocate for the Parliament having its role. I believe in that as a democratic principle and because, as all members do, I want to ensure that I can hold ministers to account.

Mr Gulhane has pre-empted the second part of my comments on amendment 23. I agree that we do not know how staff might be affected. There are many different shift patterns in many of the hospitals that the bill will cover, and there is no way, generally, to know when staff are coming and going, so protection for those staff is essential.

As I acknowledged during the stage 1 debate, given the complex and challenging issues that the bill raises, it is right that we provide for a post-legislative review. My amendment 39 seeks to achieve that.

I am grateful for the consideration that Tess White and Rachael Hamilton have given to the matter. I note that there are some differences between our approaches. Ms White and Ms Hamilton have opted for annual reviews, whereas I have taken a more standard approach, with an initial review two years after the legislation comes into force and every five years thereafter.

It is my expectation that those reviews should not be a light-touch or tick-box exercise but, rather, should involve in-depth consideration of the legislation’s impact and effectiveness. The timings that I chose reflect that, because the reviews will have implications on staff time and the public purse. It is also important that the bill’s provisions are given time to bed in, so that the impacts of safe access zones can be fairly evaluated.

However, I recognise that members might feel that the significance of the issues that are raised by safe access zones means that something more regular is required. Although I am concerned by the implications of an annual review, if amendment 39 is agreed to today, I would be very happy to explore with Ms White and Ms Hamilton whether any changes to the timings of the reviews would be possible ahead of stage 3.

I note that the amendments that have been lodged by Ms White and Ms Hamilton would not require the reports to be laid before the Parliament; they would require them only to be published. My amendment 39 would require the reports to be published and laid before the Parliament, and I think that that would offer greater transparency and accountability.

Likewise, I note that there is a considerable difference between the specificity of my amendment 39 and that of Ms White’s amendment 58. As I have said, I share her desire to ensure that the reviews are robust, but I am also sensitive to the risk of being overly prescriptive, with the detail required removing the opportunity to gather a fuller and more informative picture. Again, if my amendment 39 is agreed to, I would be very willing to discuss the issue with Ms White ahead of stage 3.

I move amendment 39.

Good morning. Like the minister, I offer my thanks to the committee for its work so far. I know that we will not all reach the same conclusions this morning, but I also know that we will do so respectfully and collegiately. I am hopeful that we will achieve a stronger bill by the end of the process.

I thank Rachael Hamilton for her engagement with me and for her desire to collaborate to make the bill better. Other than that, I do not have anything to add to what the minister said.

I thank the minister for her contribution. I support everything that she said. It is not necessary for me to repeat the particular concerns with amendment 51 that the minister raised, but I have some more general concerns about a specific requirement for signage. Those concerns will not be new to Ms Gallacher, because they are things that we have already discussed.

As the committee heard during its evidence taking, signage is not a straightforward matter. During the extensive engagement with service providers ahead of the bill’s introduction, a consistent message was the concern that signs would draw attention to abortion services that might otherwise go unnoticed. As has been discussed a number of times since the bill’s introduction, that may present a particular challenge where women and staff are especially anxious about being identified—for example, in rural areas with small sites.

It is, of course, the case that zones must be publicised, and the minister has spoken of the steps that will be taken to publicise them. However, signs would be an on-going physical demarcation. They would be visible to every passer-by and not just to those who might wish to organise or attend planned anti-abortion activity. Part of the concern, therefore, is that they could provoke more ad hoc sporadic instances of targeting. In the light of some of the genuinely horrific stories from other countries, there is palpable anxiety among some staff about erecting such a permanent advertisement.

I accept that those concerns must be weighed up against what is fair and necessary for those who might wish to express opposition to abortion outside service sites. However, for me, it remains unclear that signs would provide the clarity that Ms Gallacher seeks. In the first instance, as even those who are opposed to the bill noted during stage 1, it is not clear that signs would be a useful method of demarcating a zone. For example, it would not be practical or desirable to display signs around the entire perimeter of a zone, and it is not possible to determine with certainty where, within the zone, groups or individuals who wish to participate in anti-abortion activity may choose to stand. It is, therefore, not possible to guarantee that signs would be visible at every point where activity might take place. Where signs were noticed, they might create a gathering point behind which anti-abortion groups could safely stand, exactly on the cusp of the safe access zone. That would not be illegal, of course, but it is not something that we would seek to encourage.

I therefore join the minister in urging Meghan Gallacher not to press amendment 51 and to work with me ahead of stage 3 if she feels that there is further work to do to ensure that zones are sufficiently publicised.