Chamber and committees

One point that was made in relation to that concerned the example of mental health support and counsellors. When the act was originally drafted, and up until quite recently, the vast majority of that support was provided outside schools. Because of a recent and welcome Scottish Government decision, that support is now provided in school, but that then creates the perverse issue that we are discussing. To what extent can the code of practice alone address that? As we have heard, the act is quite specific, which is a point of learning for the future: maybe primary legislation should be a bit vaguer and more flexible to allow for adaptation. Are you confident that we will be able to address the issues that were surfaced in the 2021 review through a revision of the code of practice alone, given that the underpinning legislation is so specific?

Those who engage in the anti-abortion protest vigils would generally characterise them as vigils rather than protests. The evidence that they gave last week expressed their feeling that the bill is an attempt to force anti-abortion perspectives out of public debate entirely and to make that an unacceptable point of view to hold in society.

This might sound like a daft question, but do anti-abortion protesters have the general right to express that point of view and to do so through forms of protest, prayer vigils or whatever? Is that a point of view that people would—even after the bill’s being passed—still have the right to hold in Scottish society?

It could be an individual seeking hospital services for themselves for whatever reason, or they could be visiting somebody. If, on their way into the hospital for a legitimate purpose, they were to stop and pray, would that be caught by the bill?

The question of law is about the balance of rights. In your opening statement—I associate myself with much of what you said in that—you mentioned that women’s ECHR right to access healthcare is being compromised at present. That needs to be balanced with the ECHR right to freedom of religion. That right is an absolute, but the right to manifest one’s religion is not.

Balancing rights is tricky, and it is usually cases on such issues that end up at the Supreme Court or at the European courts. Why are you confident that the bill gets the balance right, primarily between the two fundamental rights of freedom of religion and of access to healthcare?

I accept that the police are operationally independent. I am interested in whether there are other areas of law in which we ask police officers to make such decisions. Obviously, there would be a decision for the procurator fiscal and the courts if a case were to get that far, but are there other areas of law in which we ask police officers, in the first instance, to interpret the intent or effect of an individual’s behaviour? The behaviour that we are discussing is not, in and of itself, automatically criminalised. We will not be criminalising silent prayer; the question is whether that act has the effect of influencing women who are seeking an abortion. Are there other areas of law in which we ask police officers to make such an initial judgment about effect?

The 200m distance is one notable difference in your bill. The other is the private property provision. I believe that colleagues will come in on that—I am happy to come back if that is not covered, convener, but I do not want to tread on anybody’s toes.

As others have already noted, effective operation of the provision within the zones will depend to a significant extent on the judgment of police officers who are either called to or are already at vigils or protests. They will be asked to exercise their judgment about whether the behaviour—whatever form it takes; silent prayer is the one that has been identified as being the most difficult to judge—constitutes a potential offence because it either seeks to influence, or recklessly has the effect of influencing, women who are seeking an abortion. How will police officers be supported to make that judgment? Will there be operational guidance from Police Scotland? Will there be guidance from the Lord Advocate for procurators fiscal? The bill does not provide enough information in that respect, because that is not what legislation is for, but I would like to know how we will support police officers to uphold the legislation, if the bill is passed, because they will be asked to make quite tricky decisions.

I think that a priest visiting a parishioner for the purposes of providing pastoral support would be the opposite of reckless.

I will drill down into this point, particularly regarding silent prayer. We can all understand the intent element of the provision, where the intent is very deliberately to influence people who are having an abortion. However, you mentioned that the second element is about recklessly having that effect. How exactly is “reckless” defined? You mentioned that that term is present in other areas of law. As I asked the minister earlier—which you might have caught—is that covered by the reasonable person test, or is recklessness defined separately?

Given your point that people might not know what that flag is, I will pick a more recognisable Christian symbol, such as the cross or the fish. Such symbols are associated with a faith whose church teachings are very clear on abortion. I am not referring to all Christians or all Catholics, but the Catholic Church has every right to be clear about its position on abortion. If a symbol that is clearly associated with a particular organisation—in this case, a church that takes an anti-abortion position—were to be displayed in the window of a home or from a flagpole in the garden, would that, in and of itself, be a breach of the bill’s provisions, or would it have to be something more than that?

I will now go back to basics. I said a minute ago that the broad principles are well covered, but there is an important matter to mention, particularly because you brought up the evidence given by Police Scotland, and you made a reasonable point about the potential tension between the written and oral evidence that was given. Will you address the point that some people have put to us in evidence that the police have sufficient powers as things stand to deal with people who are behaving in an intimidating manner, regardless of their proximity to a hospital or other such premises?