Chamber and committees

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.

In pulling the bill together and deciding on 200m, we did a huge amount of in-depth work, looking at every single facility in Scotland that provides abortions to ensure that entry points into those locations are covered. In some locations, including, I believe, one in Ms Hamilton’s constituency, 150m would not be large enough to cover the area that we believe we need to cover in order to ensure that women and staff can access abortion clinics safely and without harassment.

I thank Ms Hamilton for that proposal. However, as I set out in my arguments for the committee to reject the amendment, I am concerned about the dubiety that it raises. Purpose clauses are not used generally. We have used them before, for example in the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021, where one was included to make it clear that the act would not apply until the United Kingdom left the European Union.

We have been very clear in all our policy documents that the bill is being introduced to ensure that women can access healthcare safely, without intimidation and without fear of harassment. That is clear within the bill and in all the policy notes that support it.

This is a complex topic and my remarks are, accordingly, quite lengthy. However, before addressing any specifics, I note that the provisions in the amendments in this group would almost universally be highly damaging to the bill’s intent and practical operation.

The exception, in my view, is Mr Balfour’s amendment 22, which would create a specific exemption from the offences under the bill in relation to the provision of “chaplaincy services”. The Government would like more time to consider the amendment to ensure that it would apply equally to all faiths, but we do not object, in principle, to the idea. I hope that Mr Balfour will not move his amendment, to allow that consideration to happen, but I must ask that the committee resists all his amendments, if he moves them—although I see him indicating that he might not.

Dr Gulhane’s amendments 17 to 20 seek to introduce an exception to the section 4 and section 5 offences where the effects of an action are not “reasonably foreseeable”. I am grateful for Dr Gulhane’s thoughtful and considered questioning during the committee’s scrutiny and I know that his amendments are intended to increase safeguards within the bill, but I must ask members to vote against the amendments on the grounds that they would undermine a key element of the bill while failing to strengthen it in a meaningful way.

A key purpose of the bill is to ensure that women and staff are not required to come forward to report their experiences of anti-abortion activity to the police in order for an offence to have been committed and protections to apply. For understandable reasons, given the personal and sometimes upsetting nature of the matters concerned, women and staff are often reluctant to do that. Moreover, requiring women to report harm that they have experienced means that harm must happen before action can be taken. That is entirely opposite to the bill’s aim, which is, as far as possible, to prevent certain harmful effects in the first place.

There are two scenarios in which offences would be committed: first, where acts are carried out with the intention of influencing, impeding, causing alarm or harassment, or, secondly, where acts are carried out recklessly as to whether they have those effects. In either case, whether an offence has been committed will be based on the evidence of the individual’s behaviour, either by assessing their intentions or establishing whether they were reckless as to their effects. The result is that a demonstrable effect on a specific person does not require to be evidenced and, crucially, women or staff do not need to come forward and make a report before action can be taken. Instead, other witnesses can report the behaviour and provide corroborating evidence.

The amendments would provide that, even if a person carried out an act with the intention of causing one of the effects in the offence provisions, it would not amount to an offence unless the foreseeability test were met. That creates uncertainty around the offence provisions and their enforcement without any discernible benefit. In practical terms, it is hard to conceive of a situation in which the intention to influence, harass or intimidate an individual could be established without its being reasonably foreseeable that the act in question would have that effect.

In relation to the recklessness offence, there must be evidence that the accused had an utter disregard as to its effects; in other words, there must be a very high degree of indifference as to the consequences of the actions. Recklessness will generally be inferred from all the circumstances of the case and will involve, to some extent, the court considering the likely consequences of the accused’s action. To that extent, whether the consequence was—or should have been—reasonably foreseeable will be something that the court may consider. I therefore reiterate that the amendments would weaken the bill without benefit, and I urge members to preserve the bill’s original intent and to vote against amendments 17 to 20.

Similarly, I do not support, in the strongest terms, Mr Balfour’s amendment 25. It runs directly counter to the bill’s aims in seeking to allow behaviour that meets the high threshold for the offence provisions to be considered “reasonable” and to constitute a defence. That would run the risk of significantly diminishing the potential protection provided by the bill.

In very simple terms, amendment 25 would mean that someone who was charged with an offence under the bill may raise a defence that the act was “reasonable”. A person could admit that they had intended to influence someone accessing services while claiming, for example, that they did not know that they were in a safe access zone, no matter how extensive the publicity around it had been; that it was a weekend and so they thought that the premises would be closed; that the strength of their belief or their particular circumstances justified the offence; or that they had intended to provide support for women accessing the services and were therefore justified on that basis.

To be clear, it will always be possible for an accused to make those arguments; it is, of course, their right to produce mitigating evidence in their favour and to show that they neither intended to have that effect or were reckless as to the consequences of their actions. However, the defence under amendment 25 would build in potential loopholes from the outset.

I have made this argument several times today, but I must do so again: no other safe access zones legislation across the UK includes such a defence. The Northern Ireland Assembly considered it during the parliamentary passage of its own legislation and rejected it for the reasons that I have just outlined. In addition, it was precisely the absence of such a defence that the Supreme Court was asked to rule on when it considered that legislation. The court held that the offences provided for within that bill, which are broadly similar to those that we are considering, constituted a proportionate interference with the rights of anti-abortion groups, in light of the importance of the bill’s aims. Crucially, the Supreme Court considered that the inclusion of a reasonable excuse defence would impact the effectiveness of its provisions in achieving those aims.

It is the Scottish Government’s view that similar considerations apply in respect of the Abortion Services (Safe Access Zones) (Scotland) Bill. There is a risk that the defence could be used to justify behaviours that otherwise would be caught and therefore would have the precise impacts on women and staff accessing services that we are seeking to prevent. I therefore ask members to resist amendment 25.

I will address amendments 56 and 57, which relate to filming and photography offences, in general terms. When the matter was considered during the bill’s development, it was concluded that the offences as drafted would capture photography and filming.

As I have said throughout this session, the offences have deliberately been drafted broadly to avoid criminalising specific behaviours and to capture any activity that could have the effects outlined in sections 4 and 5. Therefore, if someone was filming or photographing a person accessing or providing services, either recklessly or with the intent of influencing, impeding access or causing alarm, that activity would very likely be caught by the existing provisions.

I do not think that it is difficult to understand why that would be. As we keep repeating, the issue at the heart of the bill is that women are accessing medical care and are making extremely personal decisions. In such circumstances, photography or filming, done with intent or with recklessness, would very likely have one of the effects set out in the offence provisions.

It is not normal practice to provide for an offence where an existing offence adequately covers the relevant behaviour. In this case, the offence of filming or photography is already caught by the offences that we are creating in the bill.

Thank you for your question. I agree with your opening sentiments that it is important that we ensure that people who have been infected and affected are supported as soon as possible.

I share some of the concerns of Haemophilia Scotland and of the Scottish Infected Blood Forum. The amendments that we are discussing come from the UK Government so, sadly, I cannot explain their detail. We have worked as closely as we can with the UK Government and we have had a number of four-nations meetings to discuss the concerns of each of the nations. Despite the concerns that some organisations have raised, not everything will be on the face of the bill. A lot of the work will be done through regulations, on which I see myself and my officials working closely with the UK Government to represent the views of stakeholders and the thoughts of the Scottish Government.

It is really important that we set up the right processes. In the meetings that I have had with the stakeholders in the past year, I have been very clear that we will represent their views, and I have done that in person, in Teams meetings and in letters, as have my colleagues in Wales and Northern Ireland. As I laid out in my response to the convener, my officials are meeting officials from the UK Government’s Cabinet Office and the Welsh Government and the Northern Ireland Executive to ensure that all four nations are represented.

Thank you for the opportunity to give evidence on the legislative consent memorandum, especially as you have, I know, had to arrange this meeting at short notice. I am afraid that that is because, as the convener pointed out, the United Kingdom Government was able to table its amendments on infected blood compensation only at a very late stage at Westminster.

What happened to infected blood victims was a terrible tragedy, and the Scottish Government has apologised. The Scottish Government confirmed in its closing submissions to the Infected Blood Inquiry that it recognises the strong case for provision of compensation to all those who were infected with hepatitis and/or HIV as a result of infected national health service blood or blood products, and to their bereaved relatives. Given that context, I am supportive of the policy intent.

The amendments are the first step towards implementation, in full or in part, of the inquiry’s recommendations, as set out in its “Second Interim Report”. The inquiry recommended that compensation should be provided by one UK-wide scheme in order to ensure consistency of approach, regardless of where in the UK an applicant lives or where they were infected. The UK Government amendments do so by setting up a new arm’s-length body to be called the infected blood compensation authority, which will deliver the infected blood compensation scheme.

The amendments will ensure that people in Scotland will have access to the scheme on the same basis as those elsewhere in the UK. Much of the detail, including eligibility and payment levels, will need to be set out in regulations. I know that that has caused some concern; however, John Glen MP, who is UK Minister for the Cabinet Office, wrote to me on the day on which the amendments were tabled and I have replied to stress that the details of the compensation scheme should be set out as quickly as possible.

The inquiry’s “Second Interim Report” also recommended that further interim compensation payments of £100,000 should be made to certain relatives of infected people, following the £100,000 interim payments that were made to infected people or their bereaved partners in October 2022. In response, the amendments also provide for payments to the estates of infected people who have sadly died. That is being done as a pragmatic method of ensuring that family members of the deceased get some compensation reasonably quickly. In my letter to the Minister for the Cabinet Office, I stressed that those payments should be made as quickly as possible.

The UK Government’s last-minute tabling of amendments has left us in a difficult position, with practically no opportunity to negotiate changes. However, given that the amendments represent a concrete step towards both providing compensation to the victims of that terrible tragedy and ensuring that relatives, who have received nothing or very little so far, receive interim compensation, I recommend that the Scottish Parliament consents.

Through continued engagement with the UK Government, I will seek to ensure that the needs of the victims are put first and that the scheme works for all those victims in Scotland.???