Chamber and committees

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.

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.

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.

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.