Chamber and committees

I hope that members agree that an element of future proofing is needed, as Carol Mochan said, to allow the bill to continue to achieve its aims even if abortion treatments or the way in which services are provided change. As I have explained, should the powers be used, they will always be subject to parliamentary oversight, as Gillian Mackay has emphasised.

I thank Mr Balfour for his contribution and tone. If I heard him correctly, he does not intend to move his amendments 35 and 37. I thank him for that and am happy to have further conversations with him prior to stage 3.

I hope that the arguments that I have just laid out, combined with the improvement to be made by amendment 36, is sufficient to convince Dr Gulhane and Mr Balfour not to move their amendments. I thank Mr Balfour for noting that he will not do so. However, if Dr Gulhane moves amendment 38, I urge members not to vote for it. That will preserve the ability for the legislation to be relevant and fit for purpose in years to come.

Amendment 6 agreed to.

Amendment 7 moved—[Jenni Minto]—and agreed to.

Section 1, as amended, agreed to.

Section 2—Establishment of safe access zones

I believe that we are right to have the 200m limit. When I gave evidence to the committee in stage 1, I said that that limit gives consistency, so that people will understand, when the legislation is enacted, what it is that they are looking at. I do not want to undermine the tremendous work that the committee has done on the issue so far.

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.